Do I still own a photograph when...

[leedslad]

... I was asked to help out on a wedding (for which the photographer paid me a very small fee). I gave him a CD with all the images I had taken, for him to use as part of the package he offered the Bride and Groom, but now he also has the pictures on his website!

Nothing was ever mentioned about copyright, or usage rights.

What can I do? Can he still use them?

Cheers
Paul

[ducko]

Normally you would write up an agreement before hand, but if there isn't an agreement, I'm not sure what the rule is. As a courtesy, I would think that he would at least ask if he/she could use them.

[leedslad]

Well, it was agreed he could use the images for the bride and groom, but that wasn't in writing. It was certainly never mentioned that he may want to use them to advertise his services on his website!

[bigjon0107]

When you say "on his website" what do you mean? Are they in his portfolio section, and is he claiming your work as his? Or is it in a proof section for people to view images from the wedding? If he has claimed the pics as his, that would be wrong. But if they are just being used are proofs to buy or in a slide show, that is definitely ok; after all he paid you to be there to get extra images to sell/satisfy the client.

-Jon

[leedslad]

He's using them as part of his 'portfolio' of work, and then at the end of the slideshow claiming that "all captured by **** ******* photography"

His site also claims "The images and content on this website are © Copyright 2007 **** ****** Photography"

[ducko]

Legally may not have a case. Since he paid you, then you were an "employee" of his so his company would own the rights. In the future, you may want to write up a standard release form for yourself that says that they can't be used with out your permission, or something. That wasn't very nice of him though. That sucks.

[leedslad]

Hmmmm, I can understand that, but I was paid for my 'time' and not specifically for any images.

[bigjon0107]

Well sine he is advertising them as taken by "XXX XXXX" photography, he is not representing his personal work, but you were an employee at the time the images were taking, so representing them as company images would be OK. I hate to say it, but it could be partially your fault just as much as his. Neither of you had a written agreement before hand. In your mind he could be paying you for time, but in his you could have been giving him all rights. It may be a little shady putting them up in a portfolio section with out asking at least, but there was no agreement, so there was really no detailed guidelines to go by.

-Jon

[leedslad]

The 'xxxx xxxxxxx' is actually his name, and not a company name such 'very special' photography, but yes, in hindsight there should have been something in writing. So, as there is nothing in writing regarding the copyright of the images, could I also have them on MY website or have I lost all usage of them at all?

[bigjon0107]

Yes, you can most definitely use them on your website. If push comes to shove; you do have the upper hand because you actually took the image...and once again, no written contract so nothing can be proven on his part.

[leedslad]

Cheers bigjohn, and ducko.

[bieber]

Don't use them without his permission; in all likelihood, this is considered work made for hire, and he holds copyright, unless you worked out some kind of contrary arrangement beforehand.

[bnlearle]

Dude, you absolutely own all the rights to your photos. You have to sign them over to him in a tight, legally binding release. It's like paying a model $50 for shooting. If you want to sell those images, you still have to get a signed release from him/her. Same thing goes for photography rights. Copyright states that YOU made the picture, therefore you immediately own the copyright. Only way for that to change is if you signed a release over to him. Those are all yours and you should not let him use them in his portfolio. It's unfair to you and terribly dishonest to his clients (unless he makes it clear that he always has second shooters and that second shooter shots are in HIS portfolio.

[Naturalist]

My thinking is that if you are that good that he is using your images to advertise his studio then:

A) He is treating you like an employee and, since you are working for him he is assuming the images are his, and

B) You need to start your own studio. Its obvious you have talent with a camera. How is your business sense?

[bnlearle]

To the OP, remember that just because the guy who paid you obviously thought he could use the photos himself doesn't mean that he can. You absolutely own the copyright.

[leedslad]

To the OP, remember that just because the guy who paid you obviously thought he could use the photos himself doesn't mean that he can. You absolutely own the copyright.

Any idea what UK legislation can be quoted about this, or where I can find a definitive answer? The last thing I want to do is say something to him, for him to then prove me wrong! I need to be SURE that I still own copyright, as I'm sure he'll come back at me with the defence that as he was paying me, the images belong to him.

If I had some rules to quote him, I'd feel much better about it.

[rabidcow]

To the OP, remember that just because the guy who paid you obviously thought he could use the photos himself doesn't mean that he can. You absolutely own the copyright.

People throw the whole "I own the copyright" bit around way too much.

The OP does NOT own copyright to ANY images taken while hired to do a job. Period.

http://www.copyright.gov/circs/circ1.html#wccc

[bigjon0107]

People throw the whole "I own the copyright" bit around way too much.

The OP does NOT own copyright to ANY images taken while hired to do a job. Period.

http://www.copyright.gov/circs/circ1.html#wccc


It says " if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire."

There was NO contract ("written instrument") of any kind between the two parties. Also, that is US copyright laws. Not very applicable in the OP's case.

-Jon

[sfaust]

Legally may not have a case. Since he paid you, then you were an "employee" of his so his company would own the rights. In the future, you may want to write up a standard release form for yourself that says that they can't be used with out your permission, or something. That wasn't very nice of him though. That sucks.


Don't use them without his permission; in all likelihood, this is considered work made for hire, and he holds copyright, unless you worked out some kind of contrary arrangement beforehand.


I'm not sure where the original poster is from, but since the replies about work for hire and employee status come from FL, TX, and VA, I'll respond with the US laws in mind.

NO No no! Completely wrong.

First, he is not an employee. Just because he was paid from a client, it does not make him an employee. Your hairstylist isn't your employee, nor is a landscaping company, or a painter, or a plumber, even though you pay the for work to be performed. Just because a client pays a photographer, why would they be any different than the painter, plumber, accountant who does your taxes, or your house cleaner? In the eyes of the law, you are an independent business person, or freelancer, not an employee of the client.


Even if you were an employee, the client still wouldn't own the copyright in the US. The only way to give your employer your copyright is with a signed legal document, specifically stating the work is a 'work for hire' and copyright would be transferred to the employer. Or by another legal document specifically transferring the copyright to another person or company. In the absence of either of these documents, it doesn't matter who you work for, the original photographer still owns the copyright based on US copyright law.

On the other hand if the client is also paying your withholding, workers compensation, and unemployment taxes, there could be a case made you are an employee. But even so, without a work for hire contract or explicit copyright transfer, you would still own the images regardless.

Things in the UK and Canada are different, in that in many cases the person commissioning the images may in fact own the copyright under specific circumstances.

[vwpilot]

Look, there isnt any correct answer here that anyone can say for sure. There was no contract in place, so there is no basis for anything specific in the use of the images.

If there is some kind of dispute, it would have to come down to a judge making a ruling on the matter and I would most likely bet that in this case, the judge would consider this work for hire.

The situation was the OP was hired by the photographer who held the contract for the wedding to shoot FOR HIM during the wedding. The OP was paid to perform this service FOR the wedding photographer. So in other words, he was HIRED to perform this function FOR the photographer.

I would bet that the photographer will be filling out tax forms to account for what he paid the OP as well. This makes it even closer to a WFH agreement.

So, the bottom line is that a judge would look at the circumstances. OP hired to shoot for another company with no contract in place specifying it was NOT WFH. Its most likely that they would side with the photographer and call this a WFH agreement.

Now, I'm not a lawyer and neither is anyone else here. I'm also not familiar with UK law, so NO ONE here can tell you for sure what will happen or what your rights really are.

I would suggest speaking with the photographer and seeing if you can work out your issues. I would also certainly be willing to allow him some usage since you were working for him. This was NOT your client, it was his and he hired you to help him out. I've done this for other photographers, but have always invoiced him with terms of the agreement and specifically saying that I retained my copyrights. This apparently wasnt done. I've also allowed them pretty wide use of the images because I was hired to work FOR them and provide images FOR them.

Talk with him. Figure out some details you both can work with and try to put it to rest. I would not get too confrontational with him as you certainly do not want to legally fight him on this matter as without a contract anything could happen.

[sfaust]

Look, there isnt any correct answer here that anyone can say for sure. There was no contract in place, so there is no basis for anything specific in the use of the images.

If there is some kind of dispute, it would have to come down to a judge making a ruling on the matter and I would most likely bet that in this case, the judge would consider this work for hire.

The situation was the OP was hired by the photographer who held the contract for the wedding to shoot FOR HIM during the wedding. The OP was paid to perform this service FOR the wedding photographer. So in other words, he was HIRED to perform this function FOR the photographer.

I would bet that the photographer will be filling out tax forms to account for what he paid the OP as well. This makes it even closer to a WFH agreement.

So, the bottom line is that a judge would look at the circumstances. OP hired to shoot for another company with no contract in place specifying it was NOT WFH. Its most likely that they would side with the photographer and call this a WFH agreement.

Actually there is a correct answer, and the Supreme Court was the one that decided it. One person hiring another is not automatically deemed an employee/employer, without an agreement in place or meeting specific criteria. And typically, unless salaried employees, they are considered independent contractors, much like you hiring a landscaper to mow your law every week.

Thus, it's important to have a written work for hire agreement if you don't want to spend thousands trying to convice the court your situation should fall under 'work for hire'.

The Supreme Court has already made a decision on what constitutes an employee/employer relationship. There are specific conditions and actions that need to take place before that relationship is considered an employee/employer status for 'work for hire' purposes. And even that isn't concrete, but is puts almost all photographers in the US that are non-salaried as independent contractors, and not employees. Thank congress and the supreme court for that!

You need to go to the actual supreme court decision to sort out under what circumstances the OP would be an employee in the US. One photographer hiring another for an occasional job does not automatically make him an employee, and actually quite the opposite, and thus each photographers owns the copyright to their images.

So if you ever need to contract another photographer under you, make SURE you sign a work for hire agreement, or have them grant you rights which also include your ability to grant rights to a third party. Otherwise you may take all the images, give them to the client, then find yourself on the loosing end of a copyright infringement suit dragging your client with you.

From http://www.copyright.gov/circs/circ09.pdf

Determining Whether a Work Is Made for Hire

Whether or not a particular work is made for hire is determined
by the relationship between the parties. This determination
may be difficult, because the statutory definition of a work
made for hire is complex and not always easily applied. That
definition was the focus of a 1989 Supreme Court decision
(Community for Creative Non-Violence v. Reid, 490 U.S. 730
[1989]). The court held that to determine whether a work is
made for hire, one must first ascertain whether the work was
prepared by (1) an employee or (2) an independent contractor.
If a work is created by an employee, part 1 of the statutory
definition applies, and generally the work would be considered
a work made for hire. Important: The term “employee”
here is not really the same as the common understanding
of the term; for copyright purposes, it means an employee
under the general common law of agency. This is explained
in further detail below. Please read about this at “Employer-
Employee Relationship Under Agency Law.”
If a work is created by an independent contractor (that
is, someone who is not an employee under the general
common law of agency), then the work is a specially ordered
or commissioned work, and part 2 of the statutory definition
applies. Such a work can be a work made for hire only if both
of the following conditions are met: (1) it comes within one
of the nine categories of works listed in part 2 of the definition
and (2) there is a written agreement between the parties
specifying that the work is a work made for hire.
Employer–Employee Relationship Under Agency Law
If a work is created by an employee, part 1 of the copyright
code’s definition of a work made for hire applies. To
help determine who is an employee, the Supreme Court in
CCNV v. Reid identified certain factors that characterize an
“employer-employee” relationship as defined by agency law:
1 Control by the employer over the work (e.g., the employer
may determine how the work is done, has the work done
at the employer’s location, and provides equipment or
other means to create work)
2 Control by employer over the employee (e.g., the employer
controls the employee’s schedule in creating work, has the
right to have the employee perform other assignments,
determines the method of payment, and/or has the right
to hire the employee’s assistants)
3 Status and conduct of employer (e.g., the employer is in
business to produce such works, provides the employee
with benefits, and/or withholds tax from the employee’s
payment)

For all the nitty gritty on this decision from the supreme court;

http://supreme.justia.com/us/490/730/case.html

There is a good table somewhere on one of the pro photography organizations site that lists the specifics for employee/employer relationships. I'll try to find it and post it here.

And Jim is right. Trying to work it out with the other photographer in a way that is best for both of you is always a better way to go. While I am one to promote protecting ones copyright, I'm also just about the last one that would recommend taking legal action as the best way to handle an issue.

[bnlearle]

People throw the whole "I own the copyright" bit around way too much.

The OP does NOT own copyright to ANY images taken while hired to do a job. Period.

http://www.copyright.gov/circs/circ1.html#wccc

It helps to read the whole thread if you want to sound so authoritative ;) And saying people throw around the whole "the earth is round" bit too much doesn't entail that the earth isn't round.

Fact is, if there is no contract, he owns the copyright. There are a few little loopholes here (none of which his circumstances concern) - like if you broke into Cameron Diaz's house to get a photo of her making out with some random lover for a celeb mag. If the OP did something like that, since he would be on private property unwanted (and, in fact, breaking the law), he could potentially lose his copyright ownership (they would have to go to court to settle the dispute).

Bottom line, the burden of proof is not on the OP to prove that he own the copyright. This completely contradicts what some in here have said, and I think I'll take the Govt's word on this one. I can't explain it more clearly than this. It completely addresses the OP's situtaition. Straight from the horses mouth...bottom of the page.
http://www.copyright.gov/help/faq/faq-fairuse.html

"Even if a person hires a photographer to take pictures of a wedding, for example, the photographer will own the copyright in the photographs unless the copyright in the photographs is transferred, in writing and signed by the copyright owner, to another person. The subject of the photograph generally has nothing to do with the ownership of the copyright in the photograph."

[lauderdalems]

works created on the job may belong to our employer under the "work-made-for-hire" doctrine. If the work is a "work-made-for-hire," then all rights in that work belong to the employer.

Going to depend on your relationship with the other photographer - but it sounds to me that he may actually own the copyright.

http://www.copyright.iupui.edu/youright.htm#MFH

[bnlearle]

Again, the USCO (United States Copyright Office) says as plain as day that he owns the photos.

"Even if a person hires a photographer to take pictures of a wedding, for example, the photographer will own the copyright in the photographs unless the copyright in the photographs is transferred, in writing and signed by the copyright owner, to another person. The subject of the photograph generally has nothing to do with the ownership of the copyright in the photograph."

[lauderdalems]

U.S. copyright law includes a statutory provision called the "work made for hire" doctrine, which provides that the employer and not the employee/author is the author of a work prepared by an employee within the scope of his or her employment. Because the employer is considered the "author" of the work, the employer owns the copyright in the work under Section 201.

[bnlearle]

U.S. copyright law includes a statutory provision called the "work made for hire" doctrine, which provides that the employer and not the employee/author is the author of a work prepared by an employee within the scope of his or her employment. Because the employer is considered the "author" of the work, the employer owns the copyright in the work under Section 201.Problem with that is that he doesn' fit that category. If he was an actual employee, say like a local newspaper photographer or under a corporation, then yeah. Even under the "work made for hire" doctrine, whoever he shot for still would have had to have the OP sign those photos over.

Here, I'm basically repeating this guy...
Stephen Filler, New York-based attorney with expertise in business law, contracts, intellectual property and litigation. He has worked extensively in the field of photography (representing photographers).

"The major exception is if the photograph is a “work made for hire,” which can happen in two ways. First, if the person shooting the photograph is working within the scope of employment -- for example a newspaper’s employed staff photographer – the work will be a “work made for hire” owned by the corporation.

Second, a work may be a “work made for hire” if the photographer and the person ordering the work expressly agree in writing that that the photograph is a “work made for hire.” In such case, the photograph must also be “specially ordered or commissioned,” and must fit within one of the categories listed in Section 101 of the Copyright Act (a common category involving photographs is a contribution to a collective work such a magazine or newspaper). Because a court may find a work not to be a “work made for hire” even if that’s what the parties intended, a good “work made for hire” agreement will state that if the work is deemed not to be a “work made for hire,” the agreement will create an assignment of ownership from the photographer to the person ordering the work."

[lauderdalems]

My guess is you could get 5 lawyers and they would all disagree with each other on this.

He may very well own the copyright, but my main point on this topic....everyone needs some type of contract when taking pictures for someone else. Never assume, esp. after the facts.

[bigjon0107]

Everyone here is bringing great points. But NONE of them apply to the OP. If we are truly trying to solve his problem someone should look up the copyright laws in the UK. Dont get me wrong this is great information for the US, but most people are debating like any of this even applies to him. Personally i am even interested in the UK version of these laws so i can see the difference in the two countries.

-Jon

[rabidcow]

U.S. copyright law includes a statutory provision called the "work made for hire" doctrine, which provides that the employer and not the employee/author is the author of a work prepared by an employee within the scope of his or her employment. Because the employer is considered the "author" of the work, the employer owns the copyright in the work under Section 201.

Thus a loophole to bnlearle's keen observation. (not trying to start a fight here)

Working for a photography company, I run into this quite a bit with new hires, the bottom line is that the hiring persons own rights to the hired helps work in most all cases.

When a contract is not formerly drawn then things get muddy, but the hiring company will more than likely win the case. Capturing images in the name of a company makes the images the property of the company.

If I say that I work for "John Smith Smith Photography" while on a job, and then turn around and state that I own the images from that job then I am falsely advertising goods and services. John Smith paid me to capture those images, I am responsible for turning over those images to John Smith who PAID me for my time and expertise.

That is kinda sucky for beginners, but once you have been have seen the way this industry works it makes perfect sense.

[Gary_Evans]

Sorry, but if you accepted the fee, regardless of size, you acted as an employee. Therefore the photographer you shot for has the copyright, not you.

Learn from your mistake and move on.

[bnlearle]

Again, the USCO (United States Copyright Office) says as plain as day that he owns the photos.

"Even if a person hires a photographer to take pictures of a wedding, for example, the photographer will own the copyright in the photographs unless the copyright in the photographs is transferred, in writing and signed by the copyright owner, to another person. The subject of the photograph generally has nothing to do with the ownership of the copyright in the photograph."

I hate to repeat myself but nothing anyone here has typed has cancelled out the above FACT. Unless he signed a release, they are his.

[lauderdalems]

I think it all comes down to whether the photographer relationship is a 'contract' or employee/employer relationship.

Contract relationship - photographer owns copyright
Employee/employer - employer owns copyright.

A good test also is whether taxes are withheld from pay/fee etc

[Elphaba]

How about this: contact him and explain how you were under the impression that your work would be used for packaging, not for his website portfolio, and since he is using your work for his portfolio, ask if he plans to credit you for the images. It doesn't hurt to just ask... that way you can get to the root of the issue without having to listen to all of us hand you all kind of laws and guidelines that just may not apply because we are from different countries. If he is running a proper business, he should be able to explain to you what laws allow him to post your work. And then you can research the legitimacy of his response...

[sfaust]

I hate to repeat myself but nothing anyone here has typed has cancelled out the above FACT. Unless he signed a release, they are his.

Except for the employer/employee relationship issue previously mentioned, and which is in question seeing he was hired by another photographer, and not the bride/groom themselves.

I think it all comes down to whether the photographer relationship is a 'contract' or employee/employer relationship.

Contract relationship - photographer owns copyright
Employee/employer - employer owns copyright.

A good test also is whether taxes are withheld from pay/fee etc

Exactly right for the US. The courts have a set of criteria used to test the relationship vs employer and employee. The specific set of conditions are laid out plainly based on the Supreme Court decision. So it won't take 5 lawyers to sort it out. My bet would be that if he were in the US, works for other clients also shooting photography, wasn't provided the tools to shoot the wedding, the hiring photographer didn't deduct workers compensation, taxes, etc, as required by law as an employer, and he has his own sideline photography business, it would be very very had for the hiring photographer to prove work for hire without a PRIOR written agreement. He would clearly fit the independent contractor relationship.

From the little I know of UK law, which for the record is very little, I believe that he probably doesn't own the copyright. The UK seems more in line with Canada than it does with the US. And Canada seems to suggest work for hire more often and under more circumstances than the US does.

The best point brought up was to look up what UK law is, which is what will help the OP. Excellent idea :):)

I have someone that I can ask that might know, and I'll try to do that and post any links here.

[c-bass]

sfaust must be correct. the op is no more an employee of the photographer than the photographer is of the bride and groom. they are both independant contractors. if the only two ways to get copyright are to take pic yourself or sign it over, employee or not, then in U.S. op would still own pics. in U.S. one must provide with tools for job, have controll over job, take taxes, etc. to be an employer. read an article about hte recent Fedex lawsuit. irs sued them for 300 million b.c they filed their drivers as independent contractors. haha.

[PhotosGuy]

This needs to be repeated: "the op is no more an employee of the photographer than the photographer is of the bride and groom. they are both independent contractors."

"the op is no more an employee of the photographer than the photographer is of the bride and groom. they are both independent contractors."

Securing, Managing, and Sharing the Legal Rights (http://www.copyright.iupui.edu/youright.htm#MFH)
the work may still be deemed a work-made-for-hire only if it is specially ordered or commissioned and the parties expressly agree in a written instrument signed by both of them that the work shall be considered a work-made-for-hire. This rule appies only to certain types of works. Read the work-made-for-hire statutes for more information.

[sfaust]

Frank, even repeating it, it might not get across :)

I hope the hiring photographer can prove he followed the law as an employer, withholding taxes, required disability insurance payments, filing the appropriate forms, following labor laws, safe work environment, W2 forms, etc. If so, he has a good case that it should be a work for hire status.

If not, and he didn't follow applicable laws regarding withholding taxes, benefits, legal filling, etc, he is in a 'sticky wicket'. If he claims work for hire under an employer/employee relationship, he kind of admits he hired an employee and failed to pay taxes, provide benefits required under law, file W-4s, and so on. Winning the copyright could be bittersweet once the 'employee' complains to state/federal agencies on how he was cheated out of his legally due benefits and taxes as an employee, and he gets hit with legal issues from that front!

But even worse, suppose the hiring photographer has the photographer sign a work for hire agreement as an employee. He is now bound legally to treat the hired photographer as an employee and follow all legal requirements, including disability insurance. If during a project the hired photographer gets hurt and disabled, the employer will probably be held responsible in the absence of that required disability insurance, and he would be in hot water with the government as well. Now the 'employer' could be paying all his medial bills, providing a disability salary, etc, during his disability because as an employer he was required by law to provide those benefits, and failed to do so. So the burden is on the hiring photographer to step in and resolve it monetarily. Not a great place to be! A photographer just can't hire another photographer and pay them a day rate and consider them employees. This opens up far more complicated employer/employee issues than who owns the copyright.

When I hire photographers to shoot for me, I have then sign two documents. One being an independent contractor agreement, and the other is a copyright agreement (generally its a shared copyright agreement, but could go either way). Those photographers also get a 1099 form as a independent contractor, and not a W2 as an employee would. Everything is clear from the beginning, no misunderstandings.

A photographer is really exposing his business and personal assets by assuming copyright under a work for hire basis, while not treating the hired photographer as a legal employee. They need to be consistent in all aspects. The smartest advice given so far, is to have it all spelled out up front before doing any work for the hiring photographer, and have it written and signed by both parties!

If one photographer is being hired by another, and the 'employer' is suggesting its a work for hire basis, I would ask them for a W-2 form (employees) in order to file your withholding status. If they say they don't need it, ask them if you will be getting a 1099 form (independent contractors) at the end of the year. This alone tell you how they are treating you (employee/independent) from a legal standpoint.

If you shoot photography for other clients, advertise your photography services for hire, use your own equipment when shooting for a client, the person hiring you doesn't file a W-2, you have a business license, you file your taxes as a business, claim business income on your regular taxes, or the majority of any combination of these, its hard for anyone that hires you, even another photographer, to claim that you are their employee.

If they are going to treat you like an employee and assume your copyrights, at least get the benefits they are required to provide you by law. They can't have their cake and eat it too, while leaving you with an empty plate. But once you file a W-2 form, they withhold and pay taxes, social security, medicare, and disability, your status as an independent contract is pretty slim, and work for hire status is almost guaranteed.

Here is an interesting article on FedEx when they mis-classified employees. Note, its the reverse case, but still interesting.
http://articles.moneycentral.msn.com/Taxes/CutYourTaxes/AreYouPayingYourBosssTaxes.aspx

[Tumeg]

not sure if this has been said already....


I am an assistant photographer, for weddings, and all other shoots, I give her all my pictures on a CD (all including rejects) non-photoshopped, and if she does decide to use them on her site, or if she gives them to the people (with her logo on them) she will stick my name under her logo "Image by Brad"
I would much rather it say Brad Capote, and I am going to tell her that soon, so people know who "Brad" is, lol

[Alleh]

Unless you signed a contract giving up your copyright then even the exchange of money does not change your ownership. Freelance work does not make you an employee.

[jgrussell]

... I was asked to help out on a wedding (for which the photographer paid me a very small fee). I gave him a CD with all the images I had taken, for him to use as part of the package he offered the Bride and Groom, but now he also has the pictures on his website! Nothing was ever mentioned about copyright, or usage rights. What can I do? Can he still use them?All of the answers you've been given so far deal with US copyright law, which is similar to BUT NOT THE SAME AS the law in the UK. In the UK, the law is that:The general rule about first ownership of copyright is that the author is the first owner.

If you create a copyright work, you become the 'author' so in the case of any photographs you take you are the first owner. However, an example where this may not be the case is if it was you who pressed the camera button and someone else who decided things like the camera angle, exposure and so on.

This general rule about first ownership of copyright resting with the 'author' is, however, overridden in the case of photographs which are made by an employee in the course of employment; in this case, the employer is the first owner of copyright subject to any agreement to the contrary.
Source: UK Intellectual Property Office website (http://www.ipo.gov.uk/copy/c-applies/c-photo/c-photo-ownpost89.htm)

Whether you were an employee depends entirely on UK law, not US law, and if UK law considers you an employee, then unless you have a signed agreement that says you DO keep the copyright, then your employer has it, not you.

If on the other hand you are considered self-employed, then you DO own the copyright, and not the person who hired you. You might read this article (http://www.londonfreelance.org/feesguide/phcoptxt.html) for some info on where you might go for help on this point.

Hope this helps guide you in the right direction!

[harroz]

Interesting thread, what photographer in their right mind would put up someone elses work on their site as if it were taken by them?? So as to give that impression?. I find that ludicrous and demeaning. You think he'd squirm if you called him and said "hey, how you doin?, I see you have my photos on your site, they look awesome huh!"?

He must've taken loads of images over the past 2 years that he can put up so why even put yours up? (unless it is for wedding party viewing, is it?) Yours must be better, be proud, walk tall, get yourself a site and advertise yourself, make a big poster of one of those images and get it out there ;-)

I've got a feeling the main photographer knows nothing of copyright laws, or etiquitte for that matter.

[convergent]

I think that what needs to be looked at here is the spirit of the agreement, before we start bringing lawyers in. And no one in this thread knows what kind of conversation took place between the OP and the photography company that engaged them for the work. I have hired many people over the years to work for me taking pictures. I solved this problem by giving them my cards and my camera to use. Unless they brought along a laptop or something (which none did), then they never had possession of the images to think that they owned them. I also had them sign a contract, but even if I didn't, our agreement was that the images were the property of my company.

I would guess that this is the spirit of the agreement here, but no one knows. If the OP owns the images, then he could approach the bride and groom and sell them to them, right? So how could the photography company desire that relationship. In my case, I always gave the photographers any images they wanted for their portfolio, but they had no rights to them.

As far as them including the images on their website portfolio, what's wrong with that? Many of our shoots involved a number of photographers and once the images are processed, I don't really care who took them. It makes no difference to the customer. They are the works of my photography company, and I make sure that my photographers are able to produce work at the quality level that we require. This is also a big reason why I think a lot of photographers make a huge mistake in naming the company with their name. At the very least, the customer is going to want THEM doing the work, and as they grow, this might not be possible.

My guess is that if the OP made a stink, then the photographer would take them off his site. And he'd probably never hire the OP again. If he doesn't complain, and understands where he stands with regard to working with this company, then he might get future work. Bottom line is that the OP is free to use them in his portfolio it seems, so what difference does it make??? These images ARE the work of xyz photography, and they ARE the work of the OP. It would seem that there is no real crime here that needs solving.

[saab]

I know this is an older thread, but I am very curious as to how this turned out.

[ForHisGlory]

Dont use without a model release

[convergent]

Dont use without a model release

What does a model release have to do with this thread? We are talking about a relationship between the hired photographer and the hiring photography company... and between them has copyright? Not sure how a model release would solve this or be any different between the two parties.

[elysium]

Well, it was agreed he could use the images for the bride and groom, but that wasn't in writing. It was certainly never mentioned that he may want to use them to advertise his services on his website!
Without anything written to formalise this, you are at a loss. Sorry to say but you can ask him but other than that, if he refuses, there is no paperwork to prove what you agreed.

[webechillinman]

I read somewhere that every picture you take is yours, and you own the copyright.

I got a question, the local paper has been printing my pictures. 5 other papers used my photograph. What's the rule here, should'nt I get some money here. I'm a sport photographer, being the only one at the game I sent the picture to the Editor and they used it. So what should I do here? I'm afraid to send anymore due to none payment.

[elysium]

I read somewhere that every picture you take is yours, and you own the copyright.

I got a question, the local paper has been printing my pictures. 5 other papers used my photograph. What's the rule here, should'nt I get some money here. I'm a sport photographer, being the only one at the game I sent the picture to the Editor and they used it. So what should I do here? I'm afraid to send anymore due to none payment.
Yes but what you have to remember, the OP was paid for a service and the service was for photos. Without a contract on usage, there is no real line so it may get sticky.

Going to Lawyers may be a bit too much for a photo.

[embdaw]

This same exact thing happened to me! In fact, the other photographer I helped out is using my images for advertising on wedding websites!! Like you, we had no written agreement and I was paid a small amount,since my helping was a very last minute thing since the partner of the company (who second shoots) couldnt make the wedding.

Needless to say, I had no idea how to approach them about it, but I think of it this way. Karma will get them. If people book them based off of MY images, that are way better than most of theirs (imo), then when they produce the final product, they are going to have one unhappy customer. And in the wedding industry, word spreads fast. So while legally I might not have a stand, ethically, I feel that if they have to use my work to represent their company, then their company might not have too much longevity.

Sorry for the long post...lol...just wanted to say I feel ya on this one!!

[convergent]

I am not sure what people don't get that a photography COMPANY is not a photograher, even if the company has their name in it ... like Joe Blow's Photography. It is still a company, and that company's website can use images that the company took to market the company's services (copyright issues aside). If a photographer was using someone elses images in their personal portfolio to represent their personal work, that would be wrong... but there is nothing wrong with a photography company showing images that any of their hired photographers took to represent their work. In fact it, it would be wrong to NOT show what all their photographers can do. If they only showed images that the lead photographer took in their gallery, and then always used other photographers to shoot at someones wedding... they'd be misrepresenting the facts.

This fixation with people naming their company with their name leads to a lot of unnecessary confusion.

So if you go to Bob Evan's resturant and Bob Evans doesn't cook your food, is that wrong? If you go to Bob Jones for financial advice, does Bob Jones have to give you that advice?

[zagiace]

Typically situations like these are considered work for hire.
http://en.wikipedia.org/wiki/Work_for_hire
I often work for other studios and when I do I will ask "Permission" to use those images in my website and print advertising. Totally opposite to what many of the responders to the OP. If the subject of the images ever runs across those images on my site I want to be sure I am covered as they hired the company who hired me.

[convergent]

Typically situations like these are considered work for hire.
http://en.wikipedia.org/wiki/Work_for_hire
I often work for other studios and when I do I will ask "Permission" to use those images in my website and print advertising. Totally opposite to what many of the responders to the OP. If the subject of the images ever runs across those images on my site I want to be sure I am covered as they hired the company who hired me.

Right... same here. If I'm hired by someone to shoot for THEM, my assumption is they own the photos unless we discuss otherwise. What would be the point of them hiring me if they didn't want the photos. And on top of that, 99% of the time in cases like that there is really nothing much I'd do with them anyways since the folks that hire me have the relationship with the customers.

[zagiace]

What would be the point of them hiring me if they didn't want the photos.
Probably the best quote of the entire post. Be honest with yourself, what were you expecting to happen with the shots you took?:rolleyes:
If you were worried about copyright infringement why would you have given the images to them?
If them your images on their website upset you and the images are better then the original photographers then you will be stymied to learn they likely sold the client prints that exceeded your small shooting fee.

[emja]

Probably the best quote of the entire post. Be honest with yourself, what were you expecting to happen with the shots you took?:rolleyes:
If you were worried about copyright infringement why would you have given the images to them?
If them your images on their website upset you and the images are better then the original photographers then you will be stymied to learn they likely sold the client prints that exceeded your small shooting fee.


Missing the point COMPLETELY.. :rolleyes::rolleyes::rolleyes:
it is one thing to use the images for their intended purpose.. clients may purchase millions of dollars worth of these prints with no consequence..
HOWEVER when a pro photog uses another's images for the express purpose of MARKETING and ADVERTISING it is copyright infringement unless something was signed by both parties releasing this. The only way it would not be is if OP was a consistant second shooter for the photographer in question - if that were the case then the images on the website would be a representation of what the client might get and in this situation an employee/employer relationship would be established and the appropriate paperwork would be filed. When it is a one time deal it is completely illegal to use the images as the 'company's work'. Again, obviously the photog would sell the images or give them to the client but we're talking advertising here... that is a completely different beast...

The bottom line is that the photog that has done this is in the WRONG but because the law is as slippery and slimy as they are they will most likely get away with it.
Karma will find its way to them.. or a huge lawsuit from an unhappy client who thinks their website or ads misrepresented what they paid for!

[convergent]

The bottom line is that the photog that has done this is in the WRONG but because the law is as slippery and slimy as they are they will most likely get away with it.
Karma will find its way to them.. or a huge lawsuit from an unhappy client who thinks their website or ads misrepresented what they paid for!

No I think you are missing the point. It is not a "photog" that is using the images, it is a "company". The lesson learned in this thread is to have a good contract when doing this type of work, which I have routinely done. There is nothing wrong with a "company" using representative images from past jobs to advertise.... whether the photographer was used one time, or one hundred times. The point is that the work needs to be typical of what the "company" produces. Suppose they use a different photographer for every assignment... by your logic, it would be wrong for them to post any images. There are way too many photographers that have super-sized egos. They are just pictures... they aren't the cure for cancer.

[emja]

No I think you are missing the point. It is not a "photog" that is using the images, it is a "company".
Where in the world did you get this? OP and a few posts up referenced a single photographer .. not some huge company that changes their photogs like they change their lenses..
OP even said there is a reference on the website to said photographer's copyright ownership of all images...
He does not own copyright on someone elses images unless copyright has been released.
The lesson learned in this thread is to have a good contract when doing this type of work, which I have routinely done. Oh and good for you on your routine contract.. I believe we have some people wondering what they can do when they got caught in a situation they didn't expect.. Not a slap in the face from someone who routinely does the right thing...
There is nothing wrong with a "company" using representative images from past jobs to advertise.... whether the photographer was used one time, or one hundred times. The point is that the work needs to be typical of what the "company" produces.
This is a complete contradiction..
If they only used someone once how can it be 'typical' of what the 'company' produces...
Suppose they use a different photographer for every assignment... by your logic, it would be wrong for them to post any images. There are way too many photographers that have super-sized egos. They are just pictures... they aren't the cure for cancer.
whoa.. extremist thinking much?? if you don't care about your images then YOU are not a true photographer...
Copyright infringement is SERIOUS...
And by my logic yes, it is wrong if they use a DIFFERENT second shooter for every assignment to post those images as advertising.. talk about inconsistant... UNLESS each and every second shooter signs something that says the company can do so. Also with your logic this company obviously has no lead photographer or else why the heck wouldn't THEY post their images.. aren't they good enough? Thats the bigger question here... If a photog uses anothers work it is OBVIOUSLY because they feel it will get them more business then their own.. or else why the heck wouldn't they just use their own images!!!!!

[emja]

oh, and its not 'ego' -- its protecting one's own livelihood...
and your 'cure for cancer' comment pretty much negated any real momentum you had going with your post...

[convergent]

oh, and its not 'ego' -- its protecting one's own livelihood...
and your 'cure for cancer' comment pretty much negated any real momentum you had going with your post...

Good... this was getting boring. I really don't want to debate you on something when you don't read what I wrote before. I have lived this and understand the difference between a "company" and a "photographer". Go and sue the company that hired you because they are choosing images you did for them in their marketing, to try and get more clients (and thus create opportunities for you to do more work and get paid again). I'm sure that will drum you up some more business for your "livelihood". Attacking your employer or customer is always a good strategy for expanding your business. And when he tells you to pound sand and just removes the images from his site because they have no real value beyond selling them to his clients, then you can put them on your website for everyone to see... that should help pay the bills.

[emja]

Good... this was getting boring. I really don't want to debate you on something when you don't read what I wrote before.
Read it, found it irrelevant to current thread...
I have lived this and understand the difference between a "company" and a "photographer". Go and sue the company that hired you because they are choosing images you did for them in their marketing, to try and get more clients (and thus create opportunities for you to do more work and get paid again). I'm sure that will drum you up some more business for your "livelihood". Attacking your employer or customer is always a good strategy for expanding your business. And when he tells you to pound sand and just removes the images from his site because they have no real value beyond selling them to his clients, then you can put them on your website for everyone to see... that should help pay the bills.
You're not reading what the OP has said on this situation. Im also commenting on a subsequent poster who said the exact same thing happened to them.
Both said they had HELPED OUT ON ONE SINGLE SOLITARY WEDDING... They are not 'employed' with the 'company' you speak of..
Also it is crucial to point out that neither posters mentioned ever wanting to shoot with the photographer who did this to them again.. in fact, from the sounds of it, they have questioned the photog's business tactics and therefore it would lead me to believe they had no intention of getting their work stolen ... oh wait, i mean, working for them again....
You are debating a totally different situation then what the OP and subsequent poster brought up sir!
If it was their livelihood to work for these people I might get it, but its not...
Copyright Infringement is a threat to the livelihood of pro photogs who own their own business and that is what I was referring to. Not it being a threat to their livelihood but rather a general comment on copyright infringement in and of itself.
You made it sound as if it were no big deal and that photogs have supersize egos when in actuality copyright infringement has NOTHING to do with whether or not you even LIKE your own work. Its is the simple fact that others cannot steal it and claim it as theirs or as an employee of their company's work when the OP and subsequent posters are NOT employees of that company.


And furthermore when you have a company that uses second shooters on a consistent basis and you are accurately representing THOSE second shooters then your argument would be valid. When someone "helps" someone out on ONE specific wedding or event with a loose friendly verbal agreement and then that photographer uses this ONE TIME assistant's work to represent their work in web, print or any other form of advertisements it is CLEARLY a misrepresentation of their work. OP and subsequent poster were taken advantage of because clearly their work shows talent (or else why would photog claim the work as their's - which is exactly what they're doing when they claim that their website content is copyrighted to them. OP did not sign a copyright release like your employees do.
It was a verbal agreement that he would help the photog out one time for a small fee.

This is a copyright argument and Joe Blow does not own the copyrights to OP's work. OP never signed off on them... Period.
You have contracts with your second shooters who do, so fine, use their work to sell your business because your own work is too weak.. but don't go around making it sound as if this is ok or even legal to do without the proper contract/paperwork to back you up in a court of law.
Neither actually said they were going to sue... rather they feel uncomfortable with photog using their work to boost their business when they entered into the situation assuming they were just helping out this one time.

[zagiace]

When you do not have a written agreement or contract you have to assume a reasonable agreement. The definition of Copyright Infringement is the unauthorized use of material that is covered by copyright law. I would have issue attempting to prove with out a doubt that the original intention of the OP was not to release the copyright when he released the high resolution CD. What other intent could he have had? A subjective selection of usage rights?
In addition, the original question the OP posted was "Do I still own a Photograph, " Why would that be in question?
I think it would be unreasonable to expect the OP released copyright for printing purposes but adamantly refuses to release rights for web posting.
Also, keep in mind that many photography business's use the web to sell the photos too. Certainly a blurry line.

[convergent]

Read it, found it irrelevant to current thread...

Your opinion... I disagree, and I don't think its your job to moderate what is or isn't relevant. This is a group discussion. You need to follow the WHOLE conversation, not try to relate every post in the thread to the original comment. A discussion will progress... all of my comments were relating to the dialog that came before them.

You're not reading what the OP has said on this situation. Im also commenting on a subsequent poster who said the exact same thing happened to them.
Both said they had HELPED OUT ON ONE SINGLE SOLITARY WEDDING... They are not 'employed' with the 'company' you speak of..

The OP said he was paid to work for as a second shooter at a wedding, and gave the person that hired him a CD of all the images. That is the spirit of what was done. The fact that he danced aroudn this with "I was asked to help out" and "for this I was paid a small fee" is dilluting the fact that this company (be it a one person company, or a 100 person company... still a company) hired him to do the work, as an independent contractor. BOTH parties should have thought to document the relationship, but they didn't. So you need to look a the spirit of what was done. Whether it was single and solitary is irrelevant, because everyone has to have a first time working for someone.

Also it is crucial to point out that neither posters mentioned ever wanting to shoot with the photographer who did this to them again.. in fact, from the sounds of it, they have questioned the photog's business tactics and therefore it would lead me to believe they had no intention of getting their work stolen ... oh wait, i mean, working for them again....

He was paid... the work was not stolen. And, I would guess that if he doesn't want to work with the photographer again, he could simply ask him to remove his work from his gallery and he'd do it.

You are debating a totally different situation then what the OP and subsequent poster brought up sir!

Sir, this is a discussion with many people involved... discussions progress and this topic has more complexity than just the one exact circumstance that was originally brought up... but everything I've said, applies to the OP's circumstances. This is the "business" forum, not the "legal" forum. There are many circumstances in life where you may find yourself with a technicality to your favor that would allow you to nail someone you are doing business with. But if you are really worried about "business", its best to choose your battles. In this situation, you need to look at the spirit of the agreement. I can only go on my own views on this and what I would do. If someone hired me to take pictures for them as a second shooter, I would expect that they paid me for them and they could then do with them what they wished. I am their contractor and doing work for hire. If I expected a different situation, I would bring it up ahead of time and lay out an terms that I needed to have. If the OP isn't interested in any future "business" with this photography company, or possibly any other ones that the owner of this company might know or talk to, then by all means you can take a legal position, talk to an attorney and nail them to the wall if you think you have a case. Or, if it really bothers him, he could probably call the guy on the phone and ask him to remove the images form his marketing gallery and I'd guess that he'd do it.



If it was their livelihood to work for these people I might get it, but its not...

YOU called it his "livelihood", and I was simply continuing with that line of thinking.


Copyright Infringement is a threat to the livelihood of pro photogs who own their own business and that is what I was referring to. Not it being a threat to their livelihood but rather a general comment on copyright infringement in and of itself.

I think you are using a debatable situation to try and argue a point that has plenty of blatant cases to argue it with. In this situation, no one here except the OP truly knows what agreement was verbally reached and what the spirit of that agreement was. The lesson HE needs to take away from this is to get his agreements in writing if it is that important to him. The company paid him for the work he did... so saying the stole his work is a stretch. The images have virtually zero value beyond selling them to the original client, and I would expect that the company would survive without those images in their gallery as examples of prior work. For all we know, the company may not even know they are his images. When I have multiple photographers shooting on an assignment, they all come in and get processed together. Even if I shot on the assignment, I would have to go back and look at the EXIF to figure out which camera they came from. I would just grab some of the images I liked the best, and add them to the gallery. So this whole thought that this guy is dubious is probably just total assumption without picking up the phone and talking to the guy.


You made it sound as if it were no big deal and that photogs have supersize egos when in actuality copyright infringement has NOTHING to do with whether or not you even LIKE your own work. Its is the simple fact that others cannot steal it and claim it as theirs or as an employee of their company's work when the OP and subsequent posters are NOT employees of that company.

You don't have to be an employee to be hired to do a job as a contractor, which is what the case was here. And yes, I do believe a LOT of photographers that post on forums like this have supersized egos. Whether this guy does or not, I don't know. I personally am not going to waste my time fighting an argument with someone over something that has zero value. I am no legal expert, but I believe to get any kind of award in a copyright suit, you have to show damages and you can't do that with images that have zero value. And in this case, its even debatable if there was an issue at all.


And furthermore when you have a company that uses second shooters on a consistent basis and you are accurately representing THOSE second shooters then your argument would be valid. When someone "helps" someone out on ONE specific wedding or event with a loose friendly verbal agreement and then that photographer uses this ONE TIME assistant's work to represent their work in web, print or any other form of advertisements it is CLEARLY a misrepresentation of their work. OP and subsequent poster were taken advantage of because clearly their work shows talent (or else why would photog claim the work as their's - which is exactly what they're doing when they claim that their website content is copyrighted to them. OP did not sign a copyright release like your employees do.
It was a verbal agreement that he would help the photog out one time for a small fee.

The OP is dancing around this with the wording... with "help" and "small". The fact is that he was paid to shoot and handed over a CD of all the images when he was done. His argument is with how the images are being used. By your argument, the company that hired him doesn't officially have any copyright permission to use the images for their site, so they also don't have any copyright permission to use them in products they sell to the client. You can't have it both ways. They either have permission to use them or they don't. If the OP wanted exclusions, then he should have made the guy that hired him aware of those exclusions before he did the work and accepted payment.

This is a copyright argument and Joe Blow does not own the copyrights to OP's work. OP never signed off on them... Period.

Then Joe Blow can't sell them to his client, in which case, why did he hire this guy to take the pictures?

You have contracts with your second shooters who do, so fine, use their work to sell your business because your own work is too weak.. but don't go around making it sound as if this is ok or even legal to do without the proper contract/paperwork to back you up in a court of law.
Neither actually said they were going to sue... rather they feel uncomfortable with photog using their work to boost their business when they entered into the situation assuming they were just helping out this one time.

No one said I had to use images from people I hired because my work was weak... so now we are going to start insulting people??? To use your wisdom before... that comment kind of took the wind out of the sails of your argument!

When I hire someone to work with me, I am responsible for the quality of what they produce, the style they shoot, and the end results. If they don't produce anything that fits the style I'm after, then it never sees the light of day. I have to make sure they produce something that represents my company. If that is done, regardless of whether they shot for me once or many times, it IS representative of the work my company has done... which is the point of a gallery of sample images. As I explained above... once the images are in our workflow, "who" took the picture is not even something we care about. And I've never had a photographer work with me that this was an issue.

And, having recently relocated, I have shot for some other companies recently and I could care less what they did with the images I shot for them. They owned the relationship with the customer and I was paid for my work, so what do I care?

I think the problem here is that non-business people, non-pros, are decent photographers and start dabbling in shooting for money an don't understand basic business arrangements. This is evident by the phrasing of "asked to help out" and "paid a small fee". That is called being hired or contracted do work for that company... no matter how you re-word it.

[emja]

Theres a pretty big difference between using an image in a gallery to be presented to a client and using an image to market your company on your website.
One is saying "These are the photographs taken at your wedding by myself and my assistant for you to purchase - some are by me, some are by my assistant (obviously because you saw them at your wedding)"
The other is saying "These are MY images and this is the work MY company consistantly delivers" Not so in OP's scenerio.
Not really blurry at all and after contacting PPA copyright lawyers they favored for the side of OP.
You have to get everything in writing. Otherwise it is all he said, she said.
If photog doesn't have a contract signed by OP then using the images for anything other than to make them available for their client to purchase is copyright infringement.
Just because he gave the photog the cd of full res images doesn't mean he gave him the copyright - he would have to sign off on that.
Photogs who offer full res discs to their clients do the same thing - its called a reprint release - they are only giving the copyrights if a form is presented with it releasing the photog from all rights.
OP gave the disc to photog for the express purpose of combining it with his photographs from said event - not to use as his own work in marketing materials.
There is a legal way to do everything and OP's photog didn't follow the rules so he is in the wrong.
Thats like a band giving someone a cd to listen to and assuming that now the person they gave it to owns the rights to the music.

[emja]

Your opinion...

Yep, my opinion (and copyright lawyer's opinion)
As this is a group forum you may think whatever you'd like too -
OP posted something and wanted some answers to his specific situation, not a complex discussion on all aspects of all things company/employee/etc related.
You have to admit there is a difference between asking someone to help you out and asking them to subcontract with you.
Sounds to me as if the photog was the one dancing and taking advantage of someone who didn't know any better.
My opinion again..

And my comment to you was not an insult as I've never seen your work - moreso a comment to those who do what you're saying you do.
I think quite different from bringing up terminal illness... but what do I know..
I think if you're going to run a 'company' as you do, you need to follow the rules, which you do...
however when someone else does not follow said rules they are in the wrong.
You know the rules yet you're saying they're more based on loose agreements and not on paperwork, yet you always get the paperwork signed don't you.. to protect yourself right? To give you proper legal ownership right?

[zagiace]

you seriously got a PPofA lawyer to give legal advise based on the OP's post?
Which lawyer was this?
Legally speaking what is the difference between "to help you out and asking them to subcontract with you. "

[emja]

I am a PPA member and I called, yes. Gave them the situation and they gave me their response. I wanted to know for myself what a legit lawyer would say in this situation...
I happen to know someone that this happened to a little while ago.
Actually they were happy to hear that these things were being discussed in open forums, they fight copyrights all the time and want every photographer to know their rights. According to them proper education is the only way to stop copyright infringement.
Subcontracting would be in writing.
Helping you out would be he/said she/said agreement that wouldn't hold up in court.
All the arguements presented here would come up in court as well - Whether the judge decided one way or the other is something I suppose none of us could guess.
All OP wants to know is if he has any rights here and he does.. unless he signed them away.
And thats what the copyright lawyer said.

[zagiace]

I just thought it was interesting because this exact question was raised and the response is on their site.
Here is their quote:
"Q: If I photograph for a studio as a contractor but don't have a contract in writing, can I
use the images for my website and or marketing material?
A: Before using a photograph created while an independent contractor, it is best to refer back to your contract to ensure that you own the copyright and have usage permission. If there is no contract between yourself and the studio you worked for, consult with the studio concerning your ability to use these images. Remember that even if you own the copyright, your state’s model release laws may require you to have a model release before using the image(s) in question."
Judging from that i would think the "lawyer" would want to know the state in which this occurred. Considering the OP is in the UK it may take a little different tact in providing legal advice.
You can access this form here
http://www.ppa.com/articles/123/Q-A-from-Webinar.php

[zagiace]

Silly me never thought of looking at the OP's location until you pointed out the PPA advice but in the UK the copyright belongs to the employer -according to :
http://www.copyrightservice.co.uk/copyright/p01_uk_copyright_law

"Who owns a piece of work

Normally the individual or collective who authored the work will exclusively own the work. However, if a work is produced as part of employment then it will normally belong to the person/company who hired the individual."
Irony is it specifies person or company.

[emja]

I just thought it was interesting because this exact question was raised and the response is on their site.
Here is their quote:
"Q: If I photograph for a studio as a contractor but don't have a contract in writing, can I
use the images for my website and or marketing material?


OMG THAT IS NOT THE SAME SITUATION AT ALL!!!:rolleyes:
Can I use the images for my website and for marketing material is not what he's asking..
the photog that he worked for is using HIS work on his website and for marketing material.
IT IS A DIFFERENT SITUATION.

[emja]

Silly me never thought of looking at the OP's location until you pointed out the PPA advice but in the UK the copyright belongs to the employer -according to :
http://www.copyrightservice.co.uk/copyright/p01_uk_copyright_law

"Who owns a piece of work

Normally the individual or collective who authored the work will exclusively own the work. However, if a work is produced as part of employment then it will normally belong to the person/company who hired the individual."
Irony is it specifies person or company.


The key here is "As part of employment"
There is a difference between being an employee and working with someone ONE time and with a verbal agreement.
Employment would require paperwork to establish this relationship.
Did OP fill out any tax info - are they reporting this to their tax officials? Employment requires that for sure.
A simple exchange of currency does not make for an employer/employee relationship - Unless it is outlined in writing we have no idea what their understanding/agreement was.
If he were an employee we would know.

I don't have time for this anymore... OP can contact a copyright lawyer to get the correct info but I refuse to argue anymore when you guys aren't even reading the right stuff.

[zagiace]

true,
His question was do I still own them. I misread it.
sorry,
It doesn't matter anyway since he doesn't reside in the USA and the USA Copyright law would not apply. Nor would the PPA law advice.
Where do you get employment requires paperwork?

[SlowBlink]

I was asked to help out on a wedding (for which the photographer paid me a very small fee).

This is a work for hire contract whether written down or not. It's identical to a PJ working for a publication in which the copyright is immediately transferred to the employer upon completion.

Whether he worked for him only one time is irrelevant. To use the images he took he must ask permission from the employer who has every right to refuse since he owns the images.

[emja]

If you are employed your employer is responsible for deducting and paying your taxes.
-- requires accounting paperwork.
UK and US have same requirements as far as taxes go.
If you are subcontracting you are either self-employed or part of a limited company -
both of which need to be backed up by paperwork... (UK)
Either way something needs to be established in writing.
There is no proof that OP accepted money - There is proof by EXIF info that lead photog didn't take photos so he has screwed himself by trying to pay someone under the table for services then using the images to promote his business.

[emja]

I was asked to help out on a wedding (for which the photographer paid me a very small fee).

This is a work for hire contract whether written down or not. It's identical to a PJ working for a publication in which the copyright is immediately transferred to the employer upon completion.

Whether he worked for him only one time is irrelevant. To use the images he took he must ask permission from the employer who has every right to refuse since he owns the images.

I don't get it.. why does everyone keep going back to whether or not OP can use the images on his website.. that is not what OP is asking.

Also, a PJ working for a publication would involve paperwork..
The key here is PAPERWORK..
A work for hire contract requires a contract.

Verbal will not stand up in court...

[emja]

... I was asked to help out on a wedding (for which the photographer paid me a very small fee). I gave him a CD with all the images I had taken, for him to use as part of the package he offered the Bride and Groom, but now he also has the pictures on his website!

Nothing was ever mentioned about copyright, or usage rights.

What can I do? Can he still use them?

Cheers
Paul


OP's post

[zagiace]

If you are employed your employer is responsible for deducting and paying your taxes.
-- requires accounting paperwork.
UK and US have same requirements as far as taxes go.
If you are subcontracting you are either self-employed or part of a limited company -
both of which need to be backed up by paperwork... (UK)
Either way something needs to be established in writing.
There is no proof that OP accepted money - There is proof by EXIF info that lead photog didn't take photos so he has screwed himself by trying to pay someone under the table for services then using the images to promote his business.
is this from opsi?
So, in legal terms what is the working relationship?
work for hire? sub-contracted?

[zagiace]

I don't get it.. why does everyone keep going back to whether or not OP can use the images on his website.. that is not what OP is asking.

Also, a PJ working for a publication would involve paperwork..
The key here is PAPERWORK..
A work for hire contract requires a contract.

Verbal will not stand up in court...
not sure where you got that. maybe you quoted the wrong post but he did not mention web use.

[emja]

In legal terms they have no relationship because verbal agreements only work when both parties live up to both ends of the agreement.
Neither are paying taxes (Im assuming) or it would be clear what their relationship was.

[emja]

not sure where you got that. maybe you quoted the wrong post but he did not mention web use.



To use the images he took he must ask permission from the employer who has every right to refuse since he owns the images.

to use the images.. I guess i put the word web in there but regardless OP is not asking whether he can use the images he took -
But slowblink said he had to ask permission from his employer.
OP is asking if the photog he 'helped out' can use his images on said photogs website for promotion of his company.

[convergent]

OK emja, how is it that the company that hired the photographer can sell the images to his customer?

If he doesn't have the right to put them on the website, then he doesn't have the right to sell them. You can't pick and choose what rights are legal and which aren't. It is a verbal agreement which YOU have no knowledge of since you weren't there, so whatever legal advice you got from PPA is based on incomplete information. I know a lot of lawyers and I don't know any that will give legal advice with half information.

[SlowBlink]

Well here in Canada I made a living for 13 years with service and work for hire contracts and I don't think I ever filled out a job application. Also when you work for hire or freelance you are responsible for your own taxes the employer pays the contract and claims his own.

You keep bringing up taxes and paperwork when neither are necessary to fulfil a contract. Verbal contracts hold up in court every day.

[embdaw]

Very interesting reading here.

In my own personal circumstance, I went into the agreement **thinking** that the images I provided would only be used for the client. Since the photographer had contracted out their two photogs (it is a single owner and a partner type situation) to this client and was in a bind to fulfill the original agreement since the partner could not second shoot that day. I know this is why we should have had a written contract, but I had and have absolutely no problem with the photog presenting and selling the prints to their client. Thats what I feel I was there for. However, using those images for their own advertising on wedding sites as well as their own I think goes out of the bounds of what they needed me to step in and do. I mean, I am not going to work with them again so wouldnt that be misleading to potential clientele?

[SlowBlink]

Technically no. If the site states pictures by Peter Griffin Photography and the business name is the same then every shooter working for him is covered. It's also cleaner and easier to use that format than naming every shooter since they may change frequently.

It depends on what you negotiated before hand on whether it was misleading or underhanded.

[Reign]

Wowsers... That's a lot of text to read. I apologize if I offend anyone by commenting without going through all of the back and forth.

I probably need to refer back to my law school Contracts class; but, generally speaking, a verbal contract is binding. The only issue is really to be able to evince the terms of agreement. Where certain terms were ambiguous, the contract is open to interpretation. If the question is whether you can sue, the answer is yes. Will you win? It depends; maybe. It matters what each party intended, matters whether the photog that hired you has done this customarily before, whether it is standard industry practice, and it matters a little whether the court or jury thinks you're the little guy who got taken advantage of. But none of these legal rights issues really matter because the cost of litigation is likely not worth the photos. Courts prefer that these sort of disputes are resolved between the parties, whether informally or through legal settlement.

In my opinion, I think there is a stronger argument in his favor - that he hired your services to take photos and paid you for them. Similar to the dairy who provides the milk to the butter manufacturer who provides butter to the bakery. The cake, containing the butter containing the milk, does not belong to the manufacturer or dairy. They have no rights in the cake. In a Lockean way, they sold their labor and that's that. If someone bought a cake and asked the pastry chef about his ingredients, he'd say he only buys butter from this manufacturer because it is supreme. If you go to the manufacturer and ask about his butter, he'd respond that he only uses milk from this certain dairy because it is the freshest. You would hope that you would likewise get a credit for your services as a hired photographer for his company. The flaw in this analogy is that the transformation process changes the nature of the ingredients, but in terms of commercial and business trade I think it applies. On that dairy, the worker who was hired to raise and milk the cows doesn't have any more right in the milk than his labor's wages. Remember that the photos are the product of your work, however, "but for" the photog that hired you, you would not have had the opportunity to have shot them in the first place.

My suggestion is call the guy up. Say you saw some of the photos you took and tell him you know that having them put online in his portfolio was not discussed. Tell him, perhaps, that you don't mind so much as long as you get credit and/or are able to use the photographs on your site as well. If he disagrees, then you should be a little more assertive and try to work something out. You can also let him know that you'll be putting those photos up on your site, but then give his business credit by saying that you shot them for him and provide a link.



Oh shoot... You're from the UK. I'm not sure how contracts are interpretted there... but perhaps the common law of contracts still applies to some degree.

[zagiace]

well put...

[convergent]

well put...

Agreed...

[Bumgardnern]

Wowsers... That's a lot of text to read. I apologize if I offend anyone by commenting without going through all of the back and forth.

I probably need to refer back to my law school Contracts class; but, generally speaking, a verbal contract is binding. The only issue is really to be able to evince the terms of agreement. Where certain terms were ambiguous, the contract is open to interpretation. If the question is whether you can sue, the answer is yes. Will you win? It depends; maybe. It matters what each party intended, matters whether the photog that hired you has done this customarily before, whether it is standard industry practice, and it matters a little whether the court or jury thinks you're the little guy who got taken advantage of. But none of these legal rights issues really matter because the cost of litigation is likely not worth the photos. Courts prefer that these sort of disputes are resolved between the parties, whether informally or through legal settlement.

In my opinion, I think there is a stronger argument in his favor - that he hired your services to take photos and paid you for them. Similar to the dairy who provides the milk to the butter manufacturer who provides butter to the bakery. The cake, containing the butter containing the milk, does not belong to the manufacturer or dairy. They have no rights in the cake. In a Lockean way, they sold their labor and that's that. If someone bought a cake and asked the pastry chef about his ingredients, he'd say he only buys butter from this manufacturer because it is supreme. If you go to the manufacturer and ask about his butter, he'd respond that he only uses milk from this certain dairy because it is the freshest. You would hope that you would likewise get a credit for your services as a hired photographer for his company. The flaw in this analogy is that the transformation process changes the nature of the ingredients, but in terms of commercial and business trade I think it applies. On that dairy, the worker who was hired to raise and milk the cows doesn't have any more right in the milk than his labor's wages. Remember that the photos are the product of your work, however, "but for" the photog that hired you, you would not have had the opportunity to have shot them in the first place.

My suggestion is call the guy up. Say you saw some of the photos you took and tell him you know that having them put online in his portfolio was not discussed. Tell him, perhaps, that you don't mind so much as long as you get credit and/or are able to use the photographs on your site as well. If he disagrees, then you should be a little more assertive and try to work something out. You can also let him know that you'll be putting those photos up on your site, but then give his business credit by saying that you shot them for him and provide a link.



Oh shoot... You're from the UK. I'm not sure how contracts are interpretted there... but perhaps the common law of contracts still applies to some degree.


This is all great.

But I think we might have missed something. I think that we are all assuming that this falls under a work for hire agreement. I am unsure if that is actually the case. I know of several cases where an incident like this has gone to court. In 50% of cases the ruling will favor the photographer. In that 50% of cases it is almost unanimous that the judge ruled that a written work for hire agreement was necessary to be completed before the work began. I also do not think that this work falls under one of the 9 categories in a work for hire agreement. I could be mistaken about what the 9 categories are. Also if I am not mistaken you have a moral right to be able to use these say in your portfolio because you did create them.

[Reign]

I am not familiar with cases involving work for hire agreements. I was analyzing the scenario under simple contract theory. You may be right, I don't know. However, the practice law is more than a mere 50-50 gamble. There are certain bright line rules firmly grounded in a traditional contract theory analysis - offer, acceptance, and consideration. Besides, you said 50% of the cases the photographer will win... that means 50% the other side will win. Not good odds, I might say... remember also that only a very small percentage of all cases actually go to trial and most are settled out of court. Lastly, moral right is different from legal rights.

But all of this digresses from my point. Again, I think the original poster should by all means try to talk to the guy and see what they can further agree to. I'm willing to bet that the other guy is not out to screw anyone over. I think what we're really missing here is the fact that we're all assuming that things can't be resolved amicably.

[SlowBlink]

Exactly, the whole matter could probably be cleared up in a ten minute phone call. There's a reason the Photographer paid the OP a small wage. The same reason a dollar changes hands in many contracts.