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Company claims they own my photo

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Thread started 05 Mar 2012 (Monday) 09:10   
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tomj
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"Do they really own it? I personally do not think they do."

I think you're absolutely right.

But what's this worth to you? Getting into something like this with an employer, over your hobby, will probably cost you a lot more in the end than anything you have to gain.

Post #31, Mar 05, 2012 16:02:43


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bulldog-yota
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If the company has nothing to do with photography they will have a very hard time to prove you took a picture as part your employment. Not sure on Canadian law, but if they terminate your employment because of this, you have legs to stand on for a very nice lawsuit.

As said above they are just trying to bully you, kind of a sleezy move rather than discussing compensation with you.

Really a principal thing IMHO.

Post #32, Mar 05, 2012 17:09:05




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RDKirk
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The OP is in Ontario, Canada. He has already said that he has a contract that claims intellectual property produced during the course of his employment
belongs to the company he works for.

What does "during the course of his employment" mean? Every picture he takes, whether during work or off work, from the date he first began there until the date he resigned?" He already said he was not on paid time. By what definition does "not on paid time" equal "during the course of his employment?"

Post #33, Mar 05, 2012 17:34:22




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Markk9
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RDKirk wrote in post #14030500external link
What does "during the course of his employment" mean? Every picture he takes, whether during work or off work, from the date he first began there until the date he resigned?" He already said he was not on paid time. By what definition does "not on paid time" equal "during the course of his employment?"

A judge or attorney will need to make the choice.

Post #34, Mar 05, 2012 17:48:26


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Dan ­ Marchant
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breal101 wrote in post #14028352external link
The ASMP agrees with us. Property release in the US is still a gray area of the law. However they do advise to obtain one whenever possible.

Dan Heller does an excellent job of explaining the myths about property releases - http://danheller.blogs​pot.com ...about-model-releases.htmlexternal link (See point 4). Basically you don't need a release unless the "property" involved is a trademark or copyright not a tree or piece of land.

I think that rather than starting a fight it would be better to negotiate with them. Maybe give them non exclusive full usage for an agreed upon term in exchange for the copyright and a property release.

This is actually a bad idea. The OP already owns the copyright and has no need to give them anything in "exchange for the copyright". In fact making the offer could be taken as acceptance that the company has a claim over the copyright or at least a sign of weakness that would encourage the company to push harder.

As a general point I do agree with the posters who say the OP shouldn't piss off their employer but I don't accept that that equals giving in to what is an unreasonable demand. It has been my experience that companies respect well reasoned and professionally made arguments. I have repeatedly refused to sign bad contracts (and those contracts were always amended and I never lost a job over it).

The OP should simply make clear that the image was not taken as part of their employment, it was taken in their own time, on public property, with their own equipment. It is available for licensing for $x for uses to be agreed. If they keep insisting they own the image the OP should just inform them that his lawyer doesn't agree with them and that they should discuss the matter with a qualified IP lawyer.

Post #35, Mar 05, 2012 18:19:19


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Curtis ­ N
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If your description is accurate, then the photo is not "resulting from the work of Employees in the course of their employment." Especially if you are not an employee to begin with.

Good luck convincing the morons in marketing.

Post #36, Mar 05, 2012 18:31:25


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breal101
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Dan Marchant wrote in post #14030834external link
Dan Heller does an excellent job of explaining the myths about property releases - http://danheller.blogs​pot.com ...about-model-releases.htmlexternal link (See point 4). Basically you don't need a release unless the "property" involved is a trademark or copyright not a tree or piece of land.


This is actually a bad idea. The OP already owns the copyright and has no need to give them anything in "exchange for the copyright". In fact making the offer could be taken as acceptance that the company has a claim over the copyright or at least a sign of weakness that would encourage the company to push harder.

As a general point I do agree with the posters who say the OP shouldn't piss off their employer but I don't accept that that equals giving in to what is an unreasonable demand. It has been my experience that companies respect well reasoned and professionally made arguments. I have repeatedly refused to sign bad contracts (and those contracts were always amended and I never lost a job over it).

The OP should simply make clear that the image was not taken as part of their employment, it was taken in their own time, on public property, with their own equipment. It is available for licensing for $x for uses to be agreed. If they keep insisting they own the image the OP should just inform them that his lawyer doesn't agree with them and that they should discuss the matter with a qualified IP lawyer.

Sorry but I would rather take advice from ASMP than some blog on the net. I really don't care what he has to say. I did read it and he's wrong, the purpose of a release is to lower the chance of a lawsuit. It doesn't matter how strong the suit is, money has to be spent to answer it.

Most here, including me, think that the OP owns the copyright. I should have worded my post differently I should have said in exchange for them rescinding their claim on the copyright.

You could be right, another approach to a negotiation could work better. Pulling the lawyer card does involve some risk. Even if they can't fire him they can make his life miserable in other ways. Just ask whistleblowers who were assured they couldn't lose their jobs and later found themselves in work hell.

Post #37, Mar 05, 2012 19:09:30


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juicedownload
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THis is ridiculous. I'm concerned about the company that employs you. What if you did photography part time commercially or non-commercially? Would they claim ownership of your entire image portfolio for unlimited marketing usage? Technically, you were employed at said company while on the side doing your photography.

Like others mentioned, OP needs to negotiate the terms in a professional manner as to diffuse this misunderstanding. Marketing also needs to learn the basics of licensing media. I've worked at small companies who have a blatant disregard of copyright to large companies that cross every 't' and dot every single 'i' to ensure that any hint of a lawsuit is avoided. If your company has a legal dept, I'd CC them for any future correspondence, point being - get others involved so they're aware.

Post #38, Mar 05, 2012 19:28:06


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adrenalin
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uOpt wrote in post #14027578external link
In my estimation, the property thing plays no role here.

Lunch break has a better chance, because they employ you as a photographer and you were taking photographs during the work day. If a programmer programs on a laptop during lunch in a restaurant that can be considered regular work. In the software field the employment often covers things done on vacation and real off-hours, too.

Did you use company owned equipment?

Do you have strict lunch hours, the same every day? Does the company say when your lunch hours are or can you take it whenever you like?

Perhaps you missed a few points that I stated. I do not work for a photography company. I am an IT person. I enjoy photography so I always have my gear with me. I was driving out for lunch when I saw the owl. My own gear. Strict lunch hours. Same time everyday.

Post #39, Mar 05, 2012 21:19:40




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RDKirk
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Markk9 wrote in post #14030609external link
A judge or attorney will need to make the choice.

So basically you're saying that every part-time photographer has to go to court to prove ownership of his copyrights?

Post #40, Mar 05, 2012 21:28:38




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FlyingPhotog
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RDKirk wrote in post #14032208external link
So basically you're saying that every part-time photographer has to go to court to prove ownership of his copyrights?

Only if two parties are intractably sure they own the rights...

Which it would seem might be the case here.

Post #41, Mar 05, 2012 21:33:15


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adrenalin
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So basically they have approached their legal department. In their words "to see if we can pay an employee for work such as this without causing an issue", to which once again I had to remind them that
A) I am not an employee. I am a contractor working for another company that they pay.
B) This was not even on company time

Since they wanted full copyright I provided them with a price. I also provided a price that would provide them non-exclusive rights to the photo however that would make sure that I still own it and can do whatever I want with it.

I still can't believe all of this is going on over a simple photo. Some people have said "just let them have it" but for me it's how they approached me about it.

Post #42, Mar 05, 2012 21:35:51




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FlyingPhotog
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Technically, if they control your schedule and you aren't free to come and go as you please, according to the IRS, you're not an IC, you're an employee.

However, given the rest of the circumstances, it doesn't affect your claim.

Post #43, Mar 05, 2012 21:39:15


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cire001
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stick to your guns... how some one ask goes a long way with me too.. but what do i know .. lol ..

Post #44, Mar 05, 2012 21:43:49 as a reply to adrenalin's post 7 minutes earlier.


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Rock
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This is really an interesting thread. To all the photographers that said "just give them the image....", Um, no. There are way too many of these rights grabs going on all over the world and we as photographers need to stand up and defend our rights. That image does not belong to the company.

Stand your ground and make them pay for it. If you give in on this one, what is next? Just food for thought folks.

Post #45, Mar 05, 2012 21:52:19


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