Studio vs Photographer

[Apex174]

This is a situation with a friend of mine who is going though some pain with a studio. Studio hires the photographer under contract to shoot events. Through out the time working with the studio, the photographer establishes a web site with photos that were taken at events while on assignment for the studio. The images on the website are for portfolio type purposes and not to sell for commercial gain. Now that the photographer and the studio does not get along, the studio wants the images taken down. The photographer refuses to take them down and the studio threatens to sue.

What grounds does the photographer have under copyrights law? Because it was the photographer that pressed the shutter button for the images, doesn't the photographer have ultimate ownership of the images to use them for portfolio use at the website?

Is the studio strong arming the photographer because the studio knows that the photographer does not have the financial recourse to battle the lawsuit?

I would like to get comments on this to learn and help fellow photographers so they don't get taken advantage of in the future.

[AxxisPhoto]

I'm sure you'll get more in-depth answers, but according to copyright law you as the photographer own the images. That sucks about the studio trying to sue.

Edit: Didn't fully see "under contract." Depends what the photog signed.

[dmp-potn]

Tough one.

I guess it depends on what the contract says. For example, if the contract says that the photographer transfers the copyright for all images taken as part of the assignments to the studio, then he/she has no right to use them without the studio's permission.

[Apex174]

Tough one.

I guess it depends on what the contract says. For example, if the contract says that the photographer transfers the copyright for all images taken as part of the assignments to the studio, then he/she has no right to use them without the studio's permission.

Would you say that you can't even use images you took in your portfolio, online or printed?

[krb]

Would you say that you can't even use images you took in your portfolio, online or printed?
If you sign a contract saying that the studio owns the images then the studio owns the images. Period.

But if the contract does not specifically state that then by default the images are yours. Period.

[aepoc]

If you sign a contract saying that the studio owns the images then the studio owns the images. Period.


Perfectly put.

[gonzogolf]

I cant imagine a studio would pay a photographer to take images that he could legally sell on his own to clients. I'm betting they have a clause granting them ownership of the work in the contract.

[dugcross]

This is a good question. Similar I'm a graphic designer and I have a website and a physical portfolio which has a lot of projects that I done while working at a couple of corporate companies and an ad agency. I know it's not photography but I never had that problem in fact everyl time when I left the companies they gave me samples to use for my portfolio. My question is, in photography couldn't you write it into the contract as in this case the studio owns the photos but you have use to use them for portfolio purposes only? Just seems a little anal that they won't let you at least use them in your portfolio, not arguing that that studio owns them. Seems like the very least that you could have these in your portfolio with the studio's watermark down on the corner. I'm sure that wouldn't be an issue when showing clients.

[krb]

My question is, in photography couldn't you write it into the contract as in this case the studio owns the photos but you have use to use them for portfolio purposes only? Sure you can. But obviously that needs to be written in -before- the shots are taken. This sounds like a "lesson learned" for the OP to remember next time.

[sue.t]

Using the photos to promote your business could also be considered using the photos for your own financial gain, even though the image is not sold.

[dugcross]

Using the photos to promote your business could also be considered using the photos for your own financial gain, even though the image is not sold.

Personally I don't think that should be any of their concern because if you do make money, the money you make will be from the photos you take for the new client not from any photo in your portfolio. I know people will argue with me on this but a portfolio is to showcase your talent and knowledge, not to promote business. I look at a portfolio as a tool to get you a job, not business, but I guess that can be different if you freelance. A portfolio is an individuals portfolio not a portfolio for a business. In my opinion using a photo to promote your business means to use it in an ad, poster, brochure promoting your business, not that same as having a photo in your portfolio.

[Apex174]

Personally I don't think that should be any of their concern because if you do make money, the money you make will be from the photos you take for the new client not from any photo in your portfolio. I know people will argue with me on this but a portfolio is to showcase your talent and knowledge, not to promote business. I look at a portfolio as a tool to get you a job, not business, but I guess that can be different if you freelance. A portfolio is an individuals portfolio not a portfolio for a business. In my opinion using a photo to promote your business means to use it in an ad, poster, brochure promoting your business, not that same as having a photo in your portfolio.

I agree, the studio will probably no longer use the photographer for future events, but still retains images that the photographer took at the studio web site. Now, if you are a potential client, you visit the studio and like the images then sign up with them. However, they don't tell you that the creator of those images are no longer working with the studio. Do you guys see the ethical issue in this scenario?

I think that the photographer has legitimate and more ethical use of the images to present them to prospective clients.

[egordon99]

Would you say that you can't even use images you took in your portfolio, online or printed?

If he signed a work-for-hire agreement, then it's as if the STUDIO took the picture.

[krb]

However, they don't tell you that the creator of those images are no longer working with the studio. Do you guys see the ethical issue in this scenario?

I think that the photographer has legitimate and more ethical use of the images to present them to prospective clients.
Really? I have to admit that I'm really surprised by the attitudes that some pro photographers have. It sometimes seems like they are in an alternate reality. In the world occupied by the rest of humanity, there is this thing called "employee turnover". People come, people go and it does nothing to prevent the company from talking about work that the company did in the past. Restaurants are not required to give up their Michelin Stars every time a member of the kitchen staff goes to work somewhere else. The local garage has no ethical responsibility to warn you that the guy who worked on your car last time isn't there any more.

If you wanted to maintain ownership of your images then you shouldn't have sold that ownership.

[gonzogolf]

Really? I have to admit that I'm really surprised by the attitudes that some pro photographers have. It sometimes seems like they are in an alternate reality. In the world occupied by the rest of humanity, there is this thing called "employee turnover". People come, people go and it does nothing to prevent the company from talking about work that the company did in the past. Restaurants are not required to give up their Michelin Stars every time a member of the kitchen staff goes to work somewhere else. The local garage has no ethical responsibility to warn you that the guy who worked on your car last time isn't there any more.


This is especially true if the place is a portrait studio in a mall where all the shots are basically paint by numbers setups where someone has designed the setups and the only skill the photographer adds is coaxing out expressions and assisting with poses. Not painting all studios with that brush mind you so dont hate me.

[krb]

This is especially true if the place is a portrait studio in a mall where all the shots are basically paint by numbers setups where someone has designed the setups and the only skill the photographer adds is coaxing out expressions and assisting with poses. Not painting all studios with that brush mind you so dont hate me.
Exactly. If you are really doing some creative work with a camera then you owe it to yourself to protect your rights, and that means reading and understanding the contract before you sign. But if you are simply doing some standard business headshots using a cookie-cutter lighting arrangement in front of the client's choice of backdrops then you're not really doing much to "create" the images.

[Apex174]

Really? I have to admit that I'm really surprised by the attitudes that some pro photographers have. It sometimes seems like they are in an alternate reality. In the world occupied by the rest of humanity, there is this thing called "employee turnover". People come, people go and it does nothing to prevent the company from talking about work that the company did in the past. Restaurants are not required to give up their Michelin Stars every time a member of the kitchen staff goes to work somewhere else. The local garage has no ethical responsibility to warn you that the guy who worked on your car last time isn't there any more.

If you wanted to maintain ownership of your images then you shouldn't have sold that ownership.

I understand if we're talking about standard head shots and in-studio work at a mall location. If you see creative style for weddings, events, on-location type shoots, would you agree that one photographer's talent is different from another? A studio or any company can train their employees to perform the standard work to produce what their customers expect. My argument is for about company that misrepresents a product (photograph) from an individual who is no longer around. Nothing different than a used car dealer telling you that the car has low mileage knowing well that they already rolled it back!

Photographers are creative and talented people. They are not robots told to look through a view finder and press a button.

And, yes, the unknown factor is a signed contract whether the rights to the images have been turned over to the studio.

[krb]

My argument is for about company that misrepresents a product (photograph) from an individual who is no longer around. Nothing different than a used car dealer telling you that the car has low mileage knowing well that they already rolled it back!

Photographers are creative and talented people. They are not robots told to look through a view finder and press a button.

Your argument is ignorant of the real world. Every profession requires people who are "creative and talented" and those people come and go all the time. The only difference is that some professions have more people who think they are special.

Accounting is the most boring profession I can think of but there is a lot to be said for a CPA who is able to "creatively" work within the laws to save you money on your taxes. That doesn't mean a firm is going to make a big deal of it every time an employee leaves and it doesn't mean you can be sure you'll get the same person when you come back the next year.

[Apex174]

Your argument is ignorant of the real world. Every profession requires people who are "creative and talented" and those people come and go all the time. The only difference is that some professions have more people who think they are special.

Accounting is the most boring profession I can think of but there is a lot to be said for a CPA who is able to "creatively" work within the laws to save you money on your taxes. That doesn't mean a firm is going to make a big deal of it every time an employee leaves and it doesn't mean you can be sure you'll get the same person when you come back the next year.

I see your point. The photographer in this case does good work.The issue is for the images to be used as portfolio material and thats it. It was verbally discussed to be ok in the beginning but after a falling out, this situation is what took place.

If there is a studio owner out there and would like to share their thoughts it would be helpful.

We don't have the full story to both sides and everyone has shared their thoughts. Much appreciated. Keep it coming!

[Rubi Jane]

All speculation until the contract content is shared, if there even was one.

We could get into moral rights but I'm not sure that moral rights exists in the same way as they do in Canada.

[RDKirk]

I cant imagine a studio would pay a photographer to take images that he could legally sell on his own to clients. I'm betting they have a clause granting them ownership of the work in the contract.

I would bet otherwise. I've been in plenty of conversations with studio photographers who hire "second shooters," and nearly all of them presume that they own the copyright--so nothing about it is stated in their contracts. It's a shock to them that the law states otherwise.

US copyright law is pretty clear on this. There is no circumstance in which the studio would own the copyright without paperwork pretty specifically saying so. That paperwork would have to either establish a bona fide employee relationship or establish a contract that specifically--very specifically--identifies the arrangement as "work for hire" or very specifically denotes that the copyright is transferred from the photographer.

As for "moral copyright," the US does not recognize it. The person who owns the copyright can legally claim he also took the picture in the US.

[robertcolorado]

This is where I personally have a problem. I shot weddings for years in Detroit for a very well known and established studio. Now that I am in Denver, I have nothing to show for my years shooting for them. I have many years of wedding experience and did not like the sales end of weddings. All I wanted to do was shoot and learn. I did a decent number of weddings of my own but they were all on film and in excess of 7 years old. I have since sold or tossed the negs thinking I wasn't ever going to shoot weddings again. I got laid off three months ago and want to get back into wedding photography but have nothing to show for all of those years for the studio and myself except for my word and about a dozen prints I saved. While working for that studio, we were warned to not give out our own business cards because we were on the job representing the studio. Thats about the same thing as displaying work you did for a studio and then saying it's your right to display the studio's shots. We all signed contracts that said we worked for the studio as photographers for hire. Not exactly employees, but representing the studio. I know its not mine to display. Haven't even tried.

[freaking102]

[quote=Apex174;9633550]This is a situation with a friend of mine who is going though some pain with a studio. Studio hires the photographer under contract to shoot events. Through out the time working with the studio, the photographer establishes a web site with photos that were taken at events while on assignment for the studio. The images on the website are for portfolio type purposes and not to sell for commercial gain. Now that the photographer and the studio does not get along, the studio wants the images taken down. The photographer refuses to take them down and the studio threatens to sue.

What grounds does the photographer have under copyrights law? Because it was the photographer that pressed the shutter button for the images, doesn't the photographer have ultimate ownership of the images to use them for portfolio use at the website?
[quote]

sounds like a contract dispute. why ask your question here? just read the contract and figure out the answer for yourself

[RDKirk]

While working for that studio, we were warned to not give out our own business cards because we were on the job representing the studio. Thats about the same thing as displaying work you did for a studio and then saying it's your right to display the studio's shots.

No, it isn't the same thing at all. Not at all.

We all signed contracts that said we worked for the studio as photographers for hire. Not exactly employees, but representing the studio. I know its not mine to display. Haven't even tried.

This is what US law says:

Who Can Claim Copyright?
Copyright protection subsists from the time the work is created in fixed form. The copyright in the work of authorship immediately becomes the property of the author who created the work. Only the author or those deriving their rights through the author can rightfully claim copyright.

In the case of works made for hire, the employer and not the employee is considered to be the author. Section 101 of the copyright law defines a work made for hire” as:

1 a work prepared by an employee within the scope of his or her employment; or

2 a work specially ordered or commissioned for use as:
• a contribution to a collective work
• a part of a motion picture or other audiovisual work
• a translation
• a supplementary work
• a compilation
• an instructional text
• a test
• answer material for a test
• an atlas

if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.
http://www.copyright.gov/circs/circ1.pdf

From what you describe, your contract might have made your work a "work for hire" (presuming it actually says that and you're not just calling it such).

It's completely up to you whether you want to exercise your copyright. My primary warning is to studios who don't know this information and think they have a right that they don't actually have. The law requires a written instrument that expressly transfers copyright as a work for hire.

Actually, if the contracted photographer shot the entire job all by himself, it would not even fit any of the possible categories of "work for hire." The contract would have to explicitly transfer copyright to the studio by terms other than "work for hire."

[tehshocker]

I didn't read all the replies. But usually if you work for a studio as a contractor (1099) you own all your work. If you were on the payrol they own the work.

I've shot for studios for the past and when I parted with them I asked nicely and was always able to get the images I wanted to use for my portfolio.

Good Luck to your friend.

[pauld1946]

I may be totally wrong, but if the photog is hired as an employee by the studio, is not everything shot while under employment (during his work) belong to the studio? Is it not the same as someone inventing something while under employment? Does not the employer own the trademark, copyright, or whatever? At least, often you will see that in contracts today.

[RDKirk]

I may be totally wrong, but if the photog is hired as an employee by the studio, is not everything shot while under employment (during his work) belong to the studio? Is it not the same as someone inventing something while under employment? Does not the employer own the trademark, copyright, or whatever? At least, often you will see that in contracts today.

I quoted the US copyright document just three posts above. That answers your question.

[Concretin Nik]

The mechanic correlation doesn't fly. Doesn't matter if the same mechanic works on my car, as the oil still goes in the same hole, and the tires go on in a very specific manner. There is no 'creativity' or 'style' in the final result of car maintenance. He might sing and dance when he does it, but that doesn't change the result at all.

With photography, a studio or event firm showing work that they may not be able to reproduce (because that photog is no longer working for them) is misleading. Not illegal, but still misleading. It'd be nice if customers knew enough to ask for the photographer who took "THAT" photo, but we all know customers are not educated enough to know to ask... as they think anyone with that dudes camera can take the same pictures...

[RDKirk]

The mechanic correlation doesn't fly. Doesn't matter if the same mechanic works on my car, as the oil still goes in the same hole, and the tires go on in a very specific manner. There is no 'creativity' or 'style' in the final result of car maintenance. He might sing and dance when he does it, but that doesn't change the result at all.

We may need to heed subtle difference in words. One very good craftsman (mechanic, plumber, computer programmer) will have a certain mental characteristic that enables him to deduce the source of a problem that the book does not define and that another mechanic would not discover. What will we call that mental characteristic? "Inventiveness?" "Logic?" Or "creativity?" But a point to make about it is that the craftsman is dealing with the finite boundaries of physics--he is working with what exists and within the physical rules of its existence.

However, it's a different mental characteristic that causes one artist (novelist, painter, musician, photographer) to fill a blank sheet with one thing and another artist to fill a blank sheet with something totally different. What will we call the mental characteristic that allowed Beethoven to fill a blank sheet with the notes of his fifth symphony, Da Vinci to fill a blank sheet with the image of a woman we call "Mona Lisa," or Harper Lee to fill a blank sheet with the words of "To Kill a Mockingbird?" Is that "creativity?" Or some other term?

[Steveo_pro]

I worked FT for a company and in all most instances when you are employed by a company the copyright becomes theirs unless you have agreed otherwise in contract.
Where companies get funny is if you leave to set up a similar business using 'their' content which may actually be 100% 'your' work, style and ideas, and that is what made the company successful. Intellectually the copyright is yours but that is hard one to argue as without being in that job you might not of produced the same results and another employee may have produced very similar in the same circumstances.

I got on well with my previous employers and agreed that I could use 'my' work online as long as it stated old company on image and you can make this clear by having text under image : Client - Company etc As most people know that when you produce work you will be assigning copyright over to them for a limited time for their use.

One thing that is totally out of their control is your Printed portfolio that you take to show clients face to face. you can put anything in there, unless the other company gets so arsey that they get lawers to put restraints on that, that shouldnt happen if you tell prospective clients that those images were produced when you worked for 'company'.

[canoncad]

lots of good informations...thanks to all.

[RDKirk]

As most people know that when you produce work you will be assigning copyright over to them for a limited time for their use.

A bit of correction there: Copyright is not assigned "for a limited time." What you really mean is "licensing." Copyright is "transferred," and transfer is never for a "limited time." It is permanent unless/until it is "re-transferred." Once transferred, it is wholly transferred--you can't transfer a "limited" copyright.

You could write a contract stating that you are transferring copyright to John Doe for a year and then John Doe will transfer it back to you, but under the copyright laws John Doe owns that copyright and can do whatever he wants with it, including transferring it to yet a third party, with no further permission from you. If he fails to re-transfer the copyright back to you at the contracted time, you can sue him for breach of contract, but not for a copyright violation.

[rlconklin]

I'm not a lawyer, but I am an engineer for a manufacturing company. I'm paid by the company to design products for them. Anything I design is owned by the company. Also, I have several designs that I did for the company and they have patented. Since I was paid by the company to do the job, they own the patents.

Like I said, I'm not a lawyer, but I'd think the the same principal applies here. Since the studio paid for the work, they own the work you perform.

[cory1848]

Any info on whether this was a work for hire agreement or not? Until we know that, everything people are saying are just assumptions.

[RDKirk]

I'm not a lawyer, but I am an engineer for a manufacturing company. I'm paid by the company to design products for them. Anything I design is owned by the company. Also, I have several designs that I did for the company and they have patented. Since I was paid by the company to do the job, they own the patents.

Like I said, I'm not a lawyer, but I'd think the the same principal applies here. Since the studio paid for the work, they own the work you perform.

It's not a principle, it's a law. I've already quoted this in this thread before. Here is what US copyright law says:

http://www.copyright.gov/circs/circ1.pdf
Who Can Claim Copyright?
Copyright protection subsists from the time the work is created
in fixed form. The copyright in the work of authorship
immediately becomes the property of the author who created
the work. Only the author or those deriving their rights
through the author can rightfully claim copyright.
In the case of works made for hire, the employer and not
the employee is considered to be the author.

Section 101 of
the copyright law defines a “work made for hire” as:
1 a work prepared by an employee within the scope of his or
her employment; or

2 a work specially ordered or commissioned for use as:
• a contribution to a collective work
• a part of a motion picture or other audiovisual work
• a translation
• a supplementary work
• a compilation
• an instructional text
• a test
• answer material for a test
• an atlas
if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.

Notice that there must be bona fide employment or a written agreement that expressly identifies it as a work for hire.

In the great majority of cases, "second shooters" are not contracted with these express stipulations in writing. Too many studio owners are presuming a right they do not have.