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Do I own the copyright to my photography work if I was paid?

Orange, CA |

I shot a yearly art photo book for a company for 4 years with no contract. I wasn't paid the last year, and the company dissolved shortly after. Some of the photos were photoshopped by an independent contractor so I'm not sure if this counts as a "collaborative work". Now one of the partners is trying to restart the company, and re-use my images for new commercial products and doesn't intend to make good on my last payment, nor does he plan on paying me royalties for any of the past images.

Attorney Answers 5

Posted

Let's start with the obvious. Don't work without a contract. Much of this could have been easily decided if you had negotiated an agreement at the start of the engagement. Without an agreement, these issues may need to be decided on by a judge. That's never the ideal situation. As to your particular situation, there is no one correct response. It wi depend on the detail on what was said and done during the four years of engagement. For one thing, it will depend on whether there were several independent projects (for example 4 yearly independent projects) or one long project. If there were several projects, then it is likely that your former client has rights to those photos he paid for (over the span of three years). As to the unpaid photos, you would retain the rights and he would be required to pay you for their usage. If, on the other hand, all four years would be considered a single project, he may not have as broad rights and you might be able to claim rights to more photos. Next there is the question of who actually owns the photos. Depending on your jurisdiction, you might have ownership or licensing rights to the photographs. That analysis would be important when determining rights of usage by the individual in this particular case.

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Asker

Posted

Yeah, I realize now there should have been some sort of contract, but at the time, the person was a personal friend and never thought there'd be an issue. I never discussed ownership of the images with the client, I just assumed that as a photographer shooting art, I would indefinitely own the images and they were using the particular images for the one instance of the book. The projects were definitely separate, I got paid separately for the first 3 books.

Bruce E. Burdick

Bruce E. Burdick

Posted

Deals with "friends" are the most in need of a written agreement so friends stay friends by just following the written document without all the drama of he said she said.

Asker

Posted

Yes, I definitely realize this now. Thank you for your advice.

Posted

Sticky situation, as my colleague points out, and one that would have greatly benefited from a written contract spelling out the relationship. There are arguments on both sides to copyright ownership, but it's clear you're entitled to be paid for the last year's work.

Regarding copyright ownership, federal copyright law says that a creator owns their work unless there's a transfer in writing to someone else. That's for _exclusive_ copyright transfers --non-exclusive transfers can be oral, and yours was at least that, so the company has at least that. But also under federal copyright law and state agency law, an employee's "work for hire" and its copyright belongs to the employer, not the employee, even without a written contract.

You probably mean ""collective" work or "compilation", not collaborative" work, which would matter if this was a "specially commissioned" work for hire, and would require something in writing --perhaps there's written evidence of a contract on your payment stubs?

Here it's not clear if you were an employee or an independent contractor who retained their copyright. If some of your photos were always photoshopped each year, that tends to support the employment theory. Likewise, there can be a written contract on your pay stubs.

You haven't mentioned any basis for any claim to any royalties. You also haven't mentioned whether you've had a license to use the images yourself over the last 4 years. More things to discuss with your own lawyer.

Avvo doesn't pay us for these responses, and I'm not your lawyer just because I answer this question or respond to any follow-up comments. If you want to hire me, please contact me. Otherwise, please don't expect a further response. We need an actual written agreement to form an attorney-client relationship. I'm only licensed in CA and you shouldn't rely on this answer, since each state has different laws, each situation is fact specific, and it's impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue.

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Bruce E. Burdick

Bruce E. Burdick

Posted

I agree that he is likely an employee for work for hire purposes. A 4 year stint at the beck and call of the company suggests it. He uses the term independent contract to describe another collaborator but not to describe himself, which is pretty telling. No contract suggests the employer didn't need one because he was an employee, and that there likely was some sort of employee agreement, even if only the paychecks and stubs. Wonder if he got a W-2 or a 1099? I am guessing a W-2.

Asker

Posted

I was never an employee of the company, I was an independent contractor. I never even received a tax return for any of the years I was working with this company. As for the pay stubs, I may be able to request them through my bank but from what I recall, the checks were paid out from personal accounts. I've also been using the photos for personal use for the last 4 years, without any objection from the company but then again, my use was just for promotion of my company and not for commercial use. Thank you for your advice!

Posted

You own copyright in everything you create that meets the copyright standards of originality (a low threshold). The only exception is if the work is of a certain type that can be considered a work made for hire and you sign a "work made for hire" agreement OR if you assign the copyright or agree to do so.

This answer is not legal advice nor should it be construed as such. I always attempt to provide factual information relevant to a question, but, in the end no attorney can properly advise a potential client based on the limited facts that can possibly be disclosed in a format such as this one.

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Bruce E. Burdick

Bruce E. Burdick

Posted

That is misstated and begs the relevant questions, which are does he meet the originality standards, did he agree to assign, was he an employee, was there a license, what kind of license, on what terms and skips over the breach of contract claim he has. It's mis-stated because if he was an employee the 9 work for hire categories are irrelevant and there is no "certain type" of work that qualifies, all employee works quality. See 17 USC 101 and http://www.copyright.gov/circs/circ09.pdf

Asker

Posted

Again, I was not an employee of this company. There was no contract, both written or verbal. Literally, this is the extent of the agreement. "Would you be interested in shooting photos for this book?". "Sure." Thank you very much for your help.

Posted

I believe you are likely an independent contractor and therefore the copyright owner. Since you did not have a written agreement, assuming you were not an employee, the most the other party can have is a non-exclusive license (non-exclusive transfer). Based on the limited facts you have presented, I would likely send a cease and desist letter to the new company asserting copyright infringement. Even if the original company you did business with had a non-exclusive oral license from you to use your photos, which they obviously did, I would place the burden of establishing a legal transfer of those rights to the new company on it. I would argue that your oral non-exclusive license did not permit transfers to third parties. Of course the history of your relationship with them would need to support this. As the owner of the copyright, you are free to license the photos to others as well. The non-exclusive license to your original client does not prevent this. As the other contributors have indicated, this is a complicated situation and the four year history between the parties will determine the scope of the agreement. You should explore these issues with an intellectual property attorney.

Going forward, you need to use a written agreement the spells out the ownership issues and scope of the license being granted. Obviously a qualified attorney should draft this for you.

Angela Small Booth, practicing intellectual property law for 25 years.

Comments provided on this website are not intended as legal advise and do not create and attorney client relationship.

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Bruce E. Burdick

Bruce E. Burdick

Posted

Hi again youngster. I think he will claim he's not an employee, but is likely to be found to be an employee. A four year deal where it appears he was at the beck and call of the company. He doesn't say he was an independent contract but he does mention the term in relation to someone else. So he knows the term but did not use it to describe himself. I bet the company has the better argument on employee status. The position they are taking suggests they also think so.

Bruce E. Burdick

Bruce E. Burdick

Posted

Wonder if he got a W-2 or a 1099. That might decide the issue.

Angela Small Booth

Angela Small Booth

Posted

I got the impression that this was an annual project, not a four year continuous position. Of course we need more facts.

Bruce E. Burdick

Bruce E. Burdick

Posted

OK, makes sense now. Perhaps asker will let us know.

Asker

Posted

Yes, I was an independent contractor, not an employee. I never received any tax returns, never signed any contracts. This work arrangement was definitely treated as separate projects each year, and not as one on-going project. Thank you very much for your adivce.

Posted

Q:"Do I own the copyright to my photography work if I was paid?"
A: Payment is not determinative, but it is a factor suggesting at least a non-exclusive use license to the payor from the payee/author.

Q:"I, the photographer, shot a yearly art photo book for a company for 4 years with no contract>"
A: That makes you a dumb photographer for not covering the legal bases. It also sounds like a compilation, which is important for work for hire determinations as making it more likely your work is deemed a "work for hire" but making more significant the lack of a contract [ a factor in your favor.]

Q:"I wasn't paid the last year, and the company dissolved shortly after."
A: So your first question left meant "not paid" rather than "paid." See why you need a lawyer? You didn't have anything to spell out what happened in the event of non-payment. See why you need a lawyer? You may just have a money claim, rather than ownership. Depends on unstated factors. Sounds to me like you might be considered an employee rather than an independent contractor - and if so the company not you is considered the author and owner under copyright law. 17 USC 101 See http://www.copyright.gov/circs/circ09.pdf for details.

Q: "Some of the photos were photoshopped by an independent contractor so I'm not sure if this counts as a "collaborative work".
A: It makes you or your employer (depending on employee status] a co-author with the independent contract/photoshopper of the finished photo, which is considered a derivative work of your original photo.

Q:" Now one of the partners is trying to restart the company, and re-use my images for new commercial products and doesn't intend to make good on my last payment, nor does he plan on paying me royalties for any of the past images."
A: You have a breach of contract claim even if the company owns the photos.

Bottom Line: You have a reasonable claim to make that you own the photos and you have a claim for breach of contract. The company likely has a limited implied license as regards the prior photo books, but you have a reasonable argument that is as far as their license extends and that any further use is copyright infringement. So, it would be worth your while to see a copyright attorney [some call themselves IP attorneys, particularly if they also handle patents] or entertainment attorney [combination of copyright, trademark & entertainment business law]. This all depends, of course, on the value you place on these photos. My guess is they may not be worth the legal fees involved, which is likely why you are seeking free information here on Avvo.

I am not your lawyer and you are not my client. Free advice here is without recourse and any reliance thereupon is at your sole risk. This is done without compensation as a free public service. I am licensed in IL, MO, TX and I am a Reg. Pat. Atty. so advice in any other jurisdiction is strictly general advice and should be confirmed with an attorney licensed in that jurisdiction.

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Asker

Posted

Yes, I am very aware of the mistakes I made in this situation. As I've stated in other comments, the people I was dealing with were personal friends, and I was naive to think it would not come to this. I was never an employee, always treated as a freelance independent contractor. I never even received tax documents and was paid from personal accounts. My reason for posting here was just to get an idea of my legal position before pursuing a lawyer, in case I had no case against this company. Considering that each of the books made 20-30k profit, I think it would be worth it to seek some kind of legal action. Thank you for your advice.