Copyright issues with photography, seeking resources

February 18, 2021 1:10 PM

I am a salaried employee of a non-profit organization in the US. I take photos of the location of the organization which are used for various purposes. I use my own equipment, take the photos on my own time and am self-directed for what I photograph. I store those photos externally. I have not charged the organization for the use of my photos however I have told them that the photos belong to me and not had any pushback, but also not had any confirmation until earlier this month when I started getting pushback. I'd like to learn more about this area of the law. Can you direct me to good resources so I can learn more.

If this is a state-by-state sort of legal area, I'm interested in NY and NJ specifically.

I'm not ready to get formal legal advice at this time.

posted by anonymous to Law & Government (15 answers total)

It's going to be a fuzzy area that's not clear-cut; you're a salaried employee, taking photos for the benefit of your employer, which makes them likely belong to your employer -- or at least give them a leg to stand on in court. If you were a volunteer or unpaid or otherwise not at the behest of the nonprofit in any other way, you'd probably be able to defend more. Since you're salaried, can you prove it wasn't part of your paid duties, because it could look like it is if your employer says it was. This makes it "work for hire" which has a lot of non-legal-jargon explanation on the internet to look at.

Not that this is 100% proof your employer would succeed; you do have some good legs to stand on too, that you were doing it on time you generally considered non-work time with non-work equipment.

The question more is: how much do you want to put into fighting this in court? Copyright is almost entirely a someone-sues-someone-else thing, the only way to fully resolve it is to either enter a more explicit contract explaining the rights that you both agree on, or you get a judge to tell you whose rights are whose. Even if it looks clear-cut who the winner is, it still needs to be proven in court if neither side wants to back down.

But the first thing you should do if they're pushing back is stop doing the 'free' work until an agreement is made. The more of the stuff you think you own copyright for that you keep doing while things are in question adds more questions to whose rights are whose.
posted by AzraelBrown at 1:22 PM on February 18, 2021 [8 favorites]

IANYL. Copyright is federal law, so there should be no state-level differences. Whether an employee or the employer owns the copyright is determined by whether it is a "Work Made for Hire." It sounds simple in theory and can be muddled in practice.
posted by mcgsa at 1:22 PM on February 18, 2021 [3 favorites]

Generally copyright belongs to the creator of an item unless they sell it. There are circumstances under which copyright can automatically vest in the employer of the creator, and when that happens it's called "work-for-hire".

IANAL etc. but it would appear that 'work-for-hire' would not apply in this situation, although as AzraelBrown said, you've certainly entered into a grey area where it could go either way.

According to Wikipedia the test is as follows:

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:

• 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)
• 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)
• 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)

So with the limited information you've provided above, it could go either way. E.G. If this is a hobby you've had for years, the employer was aware of your Instagram/Flickr account URL and just used stuff from time to time, then you probably own it. If, on the other hand, they had any part in directing/suggesting when/what/how to photograph then they would have a pretty strong claim to ownership.
posted by tiamat at 1:59 PM on February 18, 2021

Another element to consider is whether taking photos is in your job description. If not, that might help clarify things.
posted by skye.dancer at 2:35 PM on February 18, 2021 [1 favorite]

You should first find your employment contract and read it over for anything like "intellectual property ownership". In the commercial world anything you do during business hours or related to a business task usually gets assigned to the company and is automatically work for hire, but this may not be true at a nonprofit. This part is a bit different state-to-state, but there should be a paragraph or two in your contract about this.

If it doesn't mention intellectual property anywhere in your contract, you probably have a decently strong case you can talk to someone else about
posted by JZig at 2:38 PM on February 18, 2021 [1 favorite]

IANAL and this definitely is not legal advice. However, I am a person who does a lot of side projects (including some photography) and tries to be very careful to make sure my ownership of them is clear. I have informally talked to some lawyer friends about this a few times over the years, because I am paranoid.

If I were you, I would avoid doing this work on company property (especially if you only have access to that area because of your job), and I would think long and hard about whether I would be doing the exact same work if I wasn't employed at that company. I'm not saying that these are explicit factors in the work-for-hire doctrine, but it's just the kind of things that lawyers have told me bring risk of ambiguity.

This is more about avoiding the issue in the future than resolving any current dispute.
posted by primethyme at 2:40 PM on February 18, 2021

Also imagine that you took your employer to court over this and won - which do you value more, your rights to those photos or your good relationship with your employer? (Genuine question! Maybe you don't value your relationship with your employer very much at all!)

As others have said, the current situation is murky and the question of who owns the photos would come down to a really detailed look at the facts on the ground and what various lawyers and or judges could agree to. But it doesn't necessarily have to come to that. It might not be too late to negotiate with them - you could license the photos to your employer (either for monetary compensation or for "exposure" or as a donation or whatever) and make the ownership of the photos clear.
posted by mskyle at 2:51 PM on February 18, 2021 [1 favorite]

This isn't a state-by-state legal issue, it's governed by federal copyright law. The US Copyright office has a fairly useful primer on works made for hire.
posted by benbenson at 3:02 PM on February 18, 2021

IANAL but I am a photographer. I disagree that this is really that murky unfortunately.

Work employees perform is by definition work-for-hire, that's what an employee contract is. The exact language of your employment contract isn't really going to matter here unless it has an exemption for intellectual property (it definitely won't). The people posting wikipedia's definition of an employee are really barking up the wrong tree... if you're already a salaried W-2 employee with this organization then your employee status is not in dispute. If you already handed over the assets as part of your job working for this organization... you already gave up any rights you had IMO unless you got it in writing otherwise.

Your problem here is that you do have a signed contract, and it's an employee one. Your employer is going to say you have an existing agreement and these images aren't covered by some kind of hypothetical license you didn't get for a independent service they never contracted. And they'll probably be right.

however I have told them that the photos belong to me and not had any pushback, but also not had any confirmation until earlier this month when I started getting pushback

Do you have this in writing and signed by your employer or some other type of agreement? This is the only thing that will change what I said above. You should never hand over any type of assets for any type of commercial usage without a signed licensing agreement for this exact situation you find yourself in.

Here is an example of one, the ASMP has lots of other information about how licensing photography works.

The best path forward here is to renegotiate all future use under a licensing agreement that spells out ownership, terms and duration of use, and compensation. Otherwise, signed agreement or not, your only recourse would be to sue. & IANAL, but you're going to have a hard time arguing for damages while you're collecting a salary as an employee for images you were fine handing over without an agreement or compensation in the past.
posted by bradbane at 4:32 PM on February 18, 2021 [4 favorites]

This is advice from someone who worked in software copyright licensing a couple decades ago - not a lawyer, not a photographer but, with that warning, my advice is to think about what you really want and what you think you could realistically get from your employer.

I think the best you could hope for would be to give the organization a non-exclusive, royalty-free license to use the photos however they wish and you retain the ownership. This would let them do whatever they want with it for free but allow you to also do whatever you want as owner (except for limit their rights or charge them).

Your best chance is to argue that you had an understanding with xx (who will hopefully back you up) that you do this as a hobby, on your own time and with your own equipment and you want to retain ownership but you are happy for them to have free use of the photos to support their mission. Find the simplest licensing agreement you can that do gives them a very broad royalty-free license and see if they will sign it. My goal would be to give them something as innocuous as possible - maybe consider a Creative Commons license since that is already well known. This is most likely to work if it is a small organization without any in-house counsel. If it seems reasonable, you are hoping the right person will just agree to sign off on it without getting into a big debate about who has the strongest legal claim. Your goal is create is a simple win-win solution where they can do everything they would do normally but you still get to be the owner and possibly develop other markets for the same photos (Note: that you can offer the photos to others under different terms that you do with your employer)
posted by metahawk at 9:00 PM on February 18, 2021

So what is your exact job title and duties as defined by the employer?

If your job title was photographer, then it's pretty clear they hired you to take pictures, and thus, anything you do on the clock is theirs as "work for hire".

If your job is some analyst or some job UNRELATED TO PHOTOGRAPHY, and it's something you do on your own time, with your own equipment, then you can argue it's NOT "work for hire". But as others said, it's a gray area.

I agree with @metahawk in that you should end-run the entire argument by offering them a free use non-exclusive license that does not stop you from profiting off your portfolio in some other way, and it's at least a negotiating point to start with if they balk at that.

Though one wonders if one should put a time limit on it, or some further restrictions. Like... If someone else wants one of the images outright, does your employer get first right of refusal? Or if image X is not used in, I dunno, 5 years, should the rights "expire" and revert to you completely? Or is the license to them supposed to be perpetual?
posted by kschang at 4:44 AM on February 19, 2021 [1 favorite]

If your employer is giving you grief of any kind about stuff you're doing for them on a volunteer basis, stop doing it.

Let them decide if they need to tell you to do it as part of your job (and maybe you negotiate for compensation), or if they don't really need it at all.

In terms of IP, as a one-time professional photographer, I would say that the answer to who has what rights to the photos you took without a contract comes down to who is willing to commit the most money to hire lawyers to fight about it. That's why you don't do photography of/for anyone without a contract specifying exactly who can do what with the photos.

Personally I'd just write the photos you already took off as a lesson learned. If they want you to take photos in the future, they assign you to do it as part of your job duties (and provide you with the equipment, or you "rent" them use of your cameras (with a contract!)), or contract-hire you to do it. Again, though, contract specifying ownership and rights granted, in all cases.
posted by seanmpuckett at 4:56 AM on February 19, 2021 [2 favorites]

I too think the question boils down to whether you really want the future rights to these photos and to be paid for them and are willing to pursue expensive litigation to obtain those rights, maybe, or whether you value your job more. Even bringing in outside legal counsel for yourself here will create an adversarial situation that may end your employment. Be careful of that.

The photos are of the company property and its “location?” Their remedy is exceedingly simple if you make it expensive for them to keep using the photos either by demanding payment above your salary or withholding permission to use them: they pay the next person with a camera — these days an iPhone does the job for lots of shots — to reshoot the same photos and this time they make the terms explicitly work for hire. Unless your subject is unique and inaccessible or transient, or you’re a name brand photographer, what you bring to the mix here is a piece of equipment and a shutter button finger. Someone else will take an equally good photo of the same thing for less. Always. Because someone will do it for free.
posted by spitbull at 12:55 PM on February 19, 2021

To follow from that, it seems to me that if you identify as a serious professional photographer or want to be one, your best bet here is actually to let the ownership of the photos go, but ask (non adversarially) if your work can be credited on the website where the photos appear. You have good reasons for not wanting to create adversarial hostility: they can become a professional reference and you can use their site as a sample of your work in your own marketing portfolio.

That’s probably worth more to you, again unless you’re already separately established by name as a professional photographer, than the photos would ever be given they have exactly one potential customer and they have them already.
posted by spitbull at 1:05 PM on February 19, 2021

It's going to really depend on your contract. Being a salaried employee doesn't mean that you're a slave and that everything you do belongs to your employer, but some companies will try to assert that and some states will let them.

If your job duties include taking photos and you take no other photos other than the ones you described, they probably have a good case that you're doing work-for-hire content creation and that they own them. If your job is completely unrelated to photography or media creation, you probably have a good case that you own them.

In any case, cease doing free photography for them on your own time until this is cleared up.
posted by Candleman at 2:31 PM on February 19, 2021