 BetterPhoto Member |
Turn Over Copyright for Pay? I have been asked by a company to work this summer taking pictures at various softball/baseball tournaments. They have agreed to pay me comission as well as an hourly wage. This would be an awesome experience for me. The only thing is that they want the copyrights to my pictures since I am being paid both commission and hourly. Should I sign over my copyrights? Please reply.
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Todd Bennett |
Amanda, IMHO, and as long as you are the main photographer, you should not give away your rights to those photos. You stand to lose money on future usage of the photos. It will devalue your future work as a photographer and could make you look like a push-over. Then there is the issue of reprints being made of your photos that are not of the quality you would use. People see shoddy work with your name on it, and you build a reputation. Perhaps you might be able to negotiate with the company - based on the amount of money you stand to make - on the usage rights of the photos. You may be able to find some middle ground that will work for both you and the company you will be shooting for. Above all though, GET IT IN WRITING! You don't have a leg to stand on without it.
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W. |
If the pay is good, you can consider selling the whole gig complete with NON-EXCLUSIVE copyrights. Meaning: 1) They can use those commissioned photos for whatever purpose/application they like, except selling them to third parties, or claiming someone else but you made them; and ... 2) You can still use them (e.g., for your own marketing/promotion), but not sell them a second or third time to other parties. But, whatever you agree, like Todd said, PUT IT IN WRITING!
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David A. Dawson |
Typically, a photo shot while being paid an hourly wage belongs to the employer. After all, if production costs are being paid by someone else, how can you claim ownership of a photo you didn't pay to produce. Doesn't the employer expect to receive something for the hourly wage they are paying?. I have run into this problem before. I work for the National Park Service (not as a photographer). I have been told that any picture I take while working belongs to NPS and not me. I know photographers working for the Missouri Department of Conservation don't retain copyrights of photos shot on the job. MDC owns them. I guess it comes down to: How good are you? What can you get? How demanding can you afford to be before an employer seeks someone else for the job?
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W. |
"I have been told that any picture I take while working belongs to NPS and not me." Yes, IF 1) your job description contains photography, OR if you have been specifically asked by (your) boss and you have agreed (because it is NOT in your job description). If photography is not officially part of your job, and you happen to have a camera on you and take pictures, then those pictures are NOT automatically owned by your employer. They are yours. But not to do with as you like, since you made 'm in the boss' time. You will therefore need his agreement if you want to sell 'm to 3rd parties or publish 'm.
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Chris Starbuck |
I'm not an expert on Intellectual Property law, but this issue comes up all the time in the field in which I work. In today's world, most employers assert ownership rights to all Intellectual Property (copyrights, patents, etc) produced by the employee during the time of employment, if the IP is in any way related to what the employer does. It doesn't matter whether it's part of a specific employee's job description, only whether it's related to the employer's business. Many employers require employees to sign an acknowledgement of the employer's ownership of all such rights as a condition of employment. (In some industries, notably high tech industries, the employer's rights prevail even if the IP development was done on the employee's personal time with no use of the employer's resources!) In Amanda's specific case, her employer may allow her to retain certain limited rights. But that would be unusual.
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W. |
"most employers assert ownership rights"
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Mark Feldstein |
Well kids, W's on the right track. Copyright is a federally provided property right guaranteed by Article I Section 8 of the Constitution. While it can be traded or sold or transfered, it as to be made knowingly and specifically and any contract for any purpose made under duress, may be either void or voidable at the option of the contracting party. So, first, while it's true certain types of work created on company time may "inure to the benefit" of the employer, photographic copyright ain't one of them, UNLESS someone is specifically hired as a photographer AND their WRITTEN employment agreement specifically states the photographic work is "fore hire" and the photographer signs that section agreeing to surrender his/her copyright. Copyright in those situations applies to manuscripts created on company time. The phrase "work for hire" is a special term of art as applied to photographic or visual arts copyright law and for that type of agreement to be valid, it requires special language and legal considerations whether it's contained in an employment or other type of contract. And these days, any employer who signs a written employment contract with a prospective employee may just be begging for a wrongful termination of employment lawsuit should they breach their own contract. BTW, several years ago, Associated Press editors tried to pull the work for hire deal on staffers. We fought it and won. They backed down because none of the provisions, including the copyright ownership "work for hire" provisions weren't in writing. Since, when they try to present those types of agreements to anyone, even the stringers, they generally get turned down. As a member of ASMP, Editorial Photographers and National Press Photographers, I strongly reject surrendering my copyright in any situation, including the "work for hire" except in one and only one situation: motion picture stills or film unit photography because the studios are inclined to provide some photo credit and the compensation through the union agreements is sufficient to pay us for salary plus all rights of usage. There are a lot of different ways to handle Amanda's situation. First, if she has absolutely no plans to ever need the photos she takes for this outfit, anytime, for any purpose, then she could transfer all ownership of the work for a significant fee and be done with it. Or, Amanda could agree to what's referred to as "coextensive usage" allowing her to use her own work for anything AND share the right of unlimited use with the people she shoots for. The third way, my preference, is don't surrender your copyright at all and continue to control the usage. But then, they'd likely find someone else willing to do that. In that case, quite honestly, they're looking to hire someone based on their willingness to give up a specific right not necessarily hire someone based upon their photographic abilities. I think most pros here have seen that scenario at least once in their careers. Take it light ;>) and always
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Todd Bennett |
Glad you chimed in Mark.
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Mark Feldstein |
Thanks Todd. Pardon my typos up there. "fore hire" I think is a golf term. Nice to see ya btw. Hope you're doing well.
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Todd Bennett |
Doing well, thanks. Weather here is crap today for photography. Thunderstorms this afternoon.
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