Copyright question as an employee (not staff photographer)

[kaptainkatsu]

So I've got a tricky copyright question. I've done some research on the internet but haven't really gotten a solid answer.

I'm currently a w2 employee for my employer and was NOT hired as a photographer. It just so happened I have the equipment and the skill to take photos and videos. 100% of the equipment used (including the editing computer) is owned by me.

Long story short, I'm in the process of finding a new job and leaving my current employer. They have never compensated me beyond my normal pay (which isn't a lot) for photo/video work and have paid for all my equipment. However I have taken and edited the photos/videos on company time. There has never been any agreement between me and my employer on copyrights, just go take photos of this-and-that.

So who owns the copyright to all the photos I have taken?

 

[Orangutan]

So I've got a tricky copyright question. I've done some research on the internet but haven't really gotten a solid answer.

I'm currently a w2 employee for my employer and was NOT hired as a photographer. It just so happened I have the equipment and the skill to take photos and videos. 100% of the equipment used (including the editing computer) is owned by me.

Long story short, I'm in the process of finding a new job and leaving my current employer. They have never compensated me beyond my normal pay (which isn't a lot) for photo/video work and have paid for all my equipment. However I have taken and edited the photos/videos on company time. There has never been any agreement between me and my employer on copyrights, just go take photos of this-and-that.

So who owns the copyright to all the photos I have taken?

Talk to a lawyer -- never take legal advice from people on the Internet.

That being said, it's complicated, and may depend on which state you live in. The ultimate answer may depend on several questions:

• Do you still own copyright, but have you implicitly granted use rights?
• Does your company have an employee handbook, and does that constitute a contract between you and your employer?
• Does your state create copyright relationships between employers and employees, regardless of the terms under which you were hired?

You should ignore any simple answers you receive. Talk to an intellectual property lawyer, it will be worth every dollar you spend.

Best,

O

 

[scottkinfw]

This is a complicated issue but not for a copyright lawyer.

I'm not a lawyer, but I have read about this situation. It is likely that you don't have the rights anymore as your time during the shoots was paid for by the employer, and they gave you the assignment to shoot the subject. The post was likely done on company time. This argues that they own the intellectual property.

On the other hand, there may be a nuance that would tip the situation in your favor.

One question. Did the employer tell you not to use the images? In any event, better to be safe than sued.

All the best.

Scott.

 

[Mt Spokane Photography]

Always take the simplest path first, merely talk to your employer. See if they will sign a release for any photos or recognize your ownership. You may have to give them rights to use them, but not ownership of the copyright.

Any photos that were or may be used for company advertisements or publications become a issue, its hard to close that door later, a agreement needed to be in place first.

If the photos are of monetary value to because you may want to sell them, and the company wants to claim full rights, you will have to see a attorney. If its just personal use, I see no problems.

 

[unfocused]

Talk to a lawyer -- never take legal advice from people on the Internet.

Good advice. But, other than that, it's not that complicated. They own the work.

You got paid for the work. It was part of "other duties as assigned." You produced the work for them and they paid you for it. Case closed.

However, if your departure is amiable, they may be willing to allow you to use the work for your own promotional purposes, such as posting it to your personal website as examples of the quality of your work. But, under no circumstance, should you entertain the thought that you have any right to sell the work to someone else, without their express permission.

 

[Orangutan]

Talk to a lawyer -- never take legal advice from people on the Internet.

Good advice. But, other than that, it's not that complicated. They own the work.

You got paid for the work. It was part of "other duties as assigned." You produced the work for them and they paid you for it. Case closed.

I believe this depends on state law and whether there's an implicit contract. 1/2 hour with an lawyer would clarify it.

 

[unfocused]

Talk to a lawyer -- never take legal advice from people on the Internet.

Good advice. But, other than that, it's not that complicated. They own the work.

You got paid for the work. It was part of "other duties as assigned." You produced the work for them and they paid you for it. Case closed.

I believe this depends on state law and whether there's an implicit contract. 1/2 hour with an lawyer would clarify it.

Good advice, but I would not hold out any false hopes. Generally, anything you produce and get paid for is owned by the employer. This case is pretty clear cut. He was on work time, using work equipment and performing duties requested by his employer. Just because his original job description might not have included the term "photographer" doesn't give him the right to walk away from the job with the product.

 

[rfdesigner]

I was asked a somewhat similar question in the UK re-electronics ("can I show what I did")

Answer.. you own nothing done in your employers time or on your employers kit. You own everything done in your own time with your own kit.

At interview you will sound much better if you say "I did all this wonderful photography stuff but I can't show you as it's my pervious employers copywrite".. this says "anything I do for you I'll respect your copywrite/interlectual property"

I'll assume you know your stuff, so go take some nice pics ready for interview so you can say "but I took these in my own time on my own kit" (assuming the photog credentials matter)

If customers you shot for from your old employer approach you unsolicited for pics I suspect that's fine (but not reprints of work you did at your previous employer). If you chase them you should expect trouble from your old employer.

 

[Don Haines]

The safe assumption is that since you took those pictures for work and got paid for them, that they belong to work.

That said, you could get a lawyer and fight for your rights, but stop for a minute to consider the obvious.... doing such will at the least become a career ending move as you will never get a decent recommendation from them! It does not matter if you are in the right or in the wrong, you will be placing yourself into an adversarial position with your employer and it will not end well for you..... Imagine what happens at your next job interview when they contact your old employer and they say "I remember him, he sued us for rights to the work we paid him to do"?

Try asking nicely if you can use some of the pictures..... perhaps you can sell them on the idea of good publicity to the company or something else to make them want to comply?

 

[kaptainkatsu]

I was asked a somewhat similar question in the UK re-electronics ("can I show what I did")

Answer.. you own nothing done in your employers time or on your employers kit. You own everything done in your own time with your own kit.

Yes on employers time but all work done with 100% my kit.

 

[rfdesigner]

I was asked a somewhat similar question in the UK re-electronics ("can I show what I did")

Answer.. you own nothing done in your employers time or on your employers kit. You own everything done in your own time with your own kit.

Yes on employers time but all work done with 100% my kit.

so your employer paid for your time (and all work done).. it's theirs. Sorry.

Go out, make some new great images.. show them.

 

[Orangutan]

The safe assumption is that since you took those pictures for work and got paid for them, that they belong to work.

That said, you could get a lawyer and fight for your rights, but stop for a minute to consider the obvious.... doing such will at the least become a career ending move as you will never get a decent recommendation from them! It does not matter if you are in the right or in the wrong, you will be placing yourself into an adversarial position with your employer and it will not end well for you..... Imagine what happens at your next job interview when they contact your old employer and they say "I remember him, he sued us for rights to the work we paid him to do"?

Try asking nicely if you can use some of the pictures..... perhaps you can sell them on the idea of good publicity to the company or something else to make them want to comply?

Don, this is all helpful advice; however, the first item of business is to determine who owns the photos under the law. If he goes to a lawyer first, who tells him that in his state and his situation he owns them, he can proceed to use them as he sees fit, without even bringing it up with the (soon-to-be-former) employer. If the lawyer tells him the employer owns them then he can step back and think about how to approach the employer, if at all.

Again, I'm not a lawyer, but I'm pretty sure that employment law is complicated, and can vary quite a bit from state to state.

 

[Orangutan]

I was asked a somewhat similar question in the UK re-electronics ("can I show what I did")

Answer.. you own nothing done in your employers time or on your employers kit. You own everything done in your own time with your own kit.

Yes on employers time but all work done with 100% my kit.

Whose kit it was probably doesn't matter at all. The question is whether your scope of employment covered all activities, or just those directly related to your position. If you choose to consult with a lawyer please let us know the results.

Regards,

O

 

[LDS]

all work done with 100% my kit.

Unluckily, that usually has little or no value. Moreover if you took photos/videos of company products, people, buildings, etc. I guess you would also need some kind of signed agreement to use them commercially elsewhere.

It may happen the subject of an image is protected by copyright (or other usage rights) itself, and you can't use it freely even if the image copyright is yours.

 

[unfocused]

all work done with 100% my kit.

Unluckily, that usually has little or no value.

Plus there is this additional wrinkle:

They have never compensated me beyond my normal pay...and have paid for all my equipment.

 

[unfocused]

Thinking a bit more about this, I want to add a clarification (stipulating that solid legal advice is always better than internet legal advice).

The OP has raised the issue of copyright. That seems to imply that he intends to re-sell or otherwise profit from the work he did for his employer. I don't see any way that that will end well for him if that is his intent.

That said, though, if what the OP really wants to know is if he can show his work as examples of the kind of work he is capable of, I would modify my advice.

I've spent all my career working in journalism, public information and public relations. It is common and accepted practice for creatives (writers, photographers, editors, artists, etc.) to show prospective employers or customers samples of the work they have done for other employers or clients.

Having interviewed and hired a great many people over the years, I have always asked to see examples of their work and they always had examples to show. In fact, in the old days, it was common for reporters and photographers to collect a dozen or so "tear sheets" of their best work to save for later use in their portfolios. I've never heard of a publisher ever objecting to this.

If the OP is simply wanting to be able to show samples of his work to prospective employers or clients, I can't imagine anyone objecting. Although, if he wants to post the images on a personal portfolio website, I would recommend getting permission of his employers since that could constitute "publishing" which is different than simply including examples with your resume.

If he intends to profit from the images, that is an entirely different matter and, as other have pointed out, frankly isn't worth the hassle and damage to his reputation, regardless of any legal rights.

 

[Mikehit]

You question is surprisingly common on the different fora I have frequented over the years and from what I have read there is no simple answer. And I have read about some pretty ugly cases (obviously, only from one side).

What is a " a w2 employee"? That could be important.

The key question is why is copyright important to you? What do you want to get out of this? Do you want paying for the work (or for them to pay you to use the images, effectively the same thing)? Or do you want to use the images in some way yourself?

My guess is that the photos/video you took could be deemed to be confidential content so if you want to use the images yourself (even if only to advertise your work) it may well be overridden by any confidentiality clauses in your contract. And bear in mind any income will likely be taxable, reducing your income further.

When you have a contract even a clause saying 'any other duties' is now deemed to have restrictions but to be honest I would find it hard to find a reason that you would hold the copyright outright, let alone hold copyright that gives you any benefit.

I am in UK, but your one saving grace may be local custom. If the company has saved considerable costs by not employing a professional photographer, and if the work has been part of a useful advertising or recruitment campaign then courts may (and I only say 'may') look favourably on your input as being outside normal expected working obligations.

But is it really worth the aggravation and legal costs? After reading several of these questions over the years my advice is to decide what you want (rights to use the images in a portfolio or cash), politely ask the company for one or the other and then put it down to experience. And next time think about having a defined agreement outside your existing contract.

 

[dak723]

The first thing you should do is go talk to your employer - not asking a question on the internet. THEY will tell you their policy. In all likelihood, they will tell you that since you are an employee, they own everything you do for the company. Then see if you can work out an agreement with them. You don't say what type of work you do, what type of photos/videos you have taken. That may make a difference. I work for an engineering firm and take many photos of completed projects for them. Although it hasn't happened, it's possible that I could take a particularly artistic shot that I may want to sell prints of. Since they are in the Engineering business and would have no interest in profits from photos, they probably would let me have the rights. So talk to them - not us.

 

[Old Sarge]

What is a " a w2 employee"? That could be important.

That is an Internal Revenue Service form number indicating he is an employee rather than an independent contractor (that would be form 1099). In the case of an employee taxes and Social Security are withheld while an independent contractor would pay those based on the 1099 (record of earnings).

 

[YuengLinger]

What kind of images? Are some of your former colleagues, bosses in the shots? Were they of products or processes the employer would not want to share?

Are you talking about event photos that you'd want in a portfolio?

I'm just trying to understand how you intend to use them and why this has become an issue.

Did your employer ever tell you the photos belong to the company, that they don't want them shared on social media?

It's a good question, but pretty vague as asked.