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.
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.
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.
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.
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.
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.
Get free answers from experienced attorneys.
21,324 answers this week
2,421 attorneys answering
Get answers from top-rated lawyers.
21,324 answers this week
2,421 attorneys answering
Don't speak legalese? We define thousands of terms in plain English.Browse our legal dictionary