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 12/11/2006 03:11:14 PM · #1
The person hiring me this Friday seems to have qualms with me charging $150 for a CD of unprocessed JPG's after the event in addition to an hourly rate. He's made this startling claim:

"According to copyright and intellectual property right laws, if we were to hire you to take these photos, any pictures which you take while on the clock, we already own the rights to."

This was never stated in a prior agreement, and it seems he's claiming that this is the law. Is this true?

12/11/2006 03:13:04 PM · #2
I'm not too up on my copyright laws, but unless otherwise stipulated by you, I would think this would fall under "work for hire" and if that's the case, yeah... he's right.

You could charge a "processing fee" though!
 12/11/2006 03:13:18 PM · #3
Nope. Your images are yours unless you sell/give away the copyright. He is paying for your time and expertise - not the rights to the images.
12/11/2006 03:15:28 PM · #4
He could be right. A lot would depend on the agreement you made, as in a lot of countries if you are being paid a wage, ie, hourly rate, work performed and completed is the property of the employer, this would even cover things such as photo's, new technology developed etc.
You need to take a close look at your contract and also check out the laws relating to such things in your country/state.
 12/11/2006 03:17:56 PM · #5
Originally posted by idnic:
Nope. Your images are yours unless you sell/give away the copyright. He is paying for your time and expertise - not the rights to the images.


I stand corrected....

A quick search of the web yielded this snippet of information.

Originally posted by :

The current U.S. copyright law, enacted in 1978 after extensive consideration, gives authors automatic ownership of their work from the time that it is fixed in tangible form. This law changed the previous policy that typically awarded copyright to the party commissioning the creative work, rather than the actual author of the work.

While the new (1978) law provided exceptions under which the copyright should still belong to the assigning entity, these were clearly delineated and focused primarily on situations where the author is in an employee relationship with the organization acquiring copyright ownership.

In this situation, defined as work for hire, the individual author derives a variety of benefits—insurance, paid leave, contributions to retirement funds, severance pay in case of termination, etc.—from his employer in return for his relinquishing ownership of his work.


I would check your local laws and/or signed contract you had with him.
12/11/2006 03:30:31 PM · #6
What does your contract say?

You could give him the CD of images with really obvious watermarks on them.

Unless you are an employee, as defined by law, you own the rights.

See also here for a clearer explanation

I would say that barring any specific clause in your agreement defining your photos as "work for hire" you can tell him to pound sand.

My guess is that he's trying to take advantage of your youth and perceived naiveté to get something for nothing. Something that, you seem to be selling for very little to begin with.

Message edited by author 2006-12-11 15:36:40.
 12/11/2006 03:31:51 PM · #7
im almost positive that if it wasnt part of the original contract then you have the rights to the photo not him
 12/11/2006 03:38:23 PM · #8
tell him to kiss your ass then move on.
 12/11/2006 03:41:03 PM · #9
Originally posted by rex:
tell him to kiss your ass then move on.


Gotta agree with Rex on this!
 12/11/2006 03:47:23 PM · #10
Originally posted by rex:
tell him to kiss your ass then move on.


My sentiments exactly! Then tell him to take his own damn pictures.
 12/11/2006 04:19:01 PM · #11
Originally posted by rex:
tell him to kiss your ass then move on.


I'd much rather make some money than none at all.
 12/11/2006 04:26:23 PM · #12
Originally posted by Plexxoid:
Originally posted by rex:
tell him to kiss your ass then move on.


I'd much rather make some money than none at all.


You'll come to realize, hopefully before you reach bankruptcy, that some clients are literally more trouble than they're worth.

In any event, since it sounds like you have already agreed to cover the event, you should do it, but I would not hand over anything until you get paid, and then, only a CD with watermarks embedded in the pictures. Oh yeah, make sure you register the images with the copyright office ASAP.

If they use the images outside of your agreement, sue. If he needs to learn a lesson in intellectual property rights, then teach it to him, the hard and expensive (for him) way.

12/11/2006 04:35:23 PM · #13
Originally posted by Plexxoid:
Originally posted by rex:
tell him to kiss your ass then move on.


I'd much rather make some money than none at all.


there is plenty of money to be made elsewhere. Don't look desperate.
 12/11/2006 04:39:48 PM · #14
Originally posted by Plexxoid:
"According to copyright and intellectual property right laws, if we were to hire you to take these photos, any pictures which you take while on the clock, we already own the rights to."

Yeah he's definately twisting the work for hire concept. Just nicely explain that it applies to situations were the person is employed by a company not where you hire an outside business to do the work. Also double check your contract and review it with the individual before the gig. Explain thouroughly what your rights are and what rights you are allowing them to excercise (display, reproduce, prepare derivitives, distrbute).
 12/11/2006 05:42:53 PM · #15
Originally posted by Plexxoid:
Originally posted by rex:
tell him to kiss your ass then move on.


I'd much rather make some money than none at all.


Of its worth selling out over, then sll out. Otherwise, stand strong in your beliefe that you work is valuable art. Don't be undercut just for a little money.
 12/11/2006 06:02:54 PM · #16
"Work for Hire" is a very specific thing under the copyright laws, and it does NOT mean "I hired you to take the pictures so I own them."

Here's what Wkipedia says:

"Law of the United States

Under U.S. law, the owner of a copyright in a work is the author. In most cases, this is the individual or group of individuals that creates the work. However, when a work is considered a work made for hire - more commonly called a "work for hire", abbreviated as "WFH" - the author of the work is no longer the individual creator or creators. Instead, the author is considered to be the entity that hired the creator of the work.

The circumstances in which a work is considered a work made for hire is determined by the language of the United States Copyright Act:

Works Made for Hire. -- (1) a work prepared by an employee within the scope of his or her employment; or (2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. 17 U.S.C. sec 101

The first situation applies only when the work's creator is an employee and not an independent contractor. The determination of whether an individual is an employee for the purposes of the work made for hire doctrine is determined under "the common law of agency". Although the distinction between an employee and an independent contractor can be difficult to analyze in some situations, it is clear that a work created within the scope of a regular salaried or hourly employee's job is a work made for hire. Typical examples of works made for hire are a software program created by an employee programmer or ad copy created by a marketing department employee.

If a work is created by an independent contractor or freelancer (that is, someone who is not an employee), the work can be created as a work made for hire, or not. In order for it to be a work made for hire, all of the following conditions are required: i) the work must be specially ordered or commissioned; ii) the work must come within one of the nine categories of works listed in the definition above; and iii) there must be a written agreement in advance between the parties specifying that the work is a work made for hire.

The determination of whether a particular work is a work made for hire can be crucial to the hiring party's ability to utilize the created work. If a work is considered a work made for hire, the author and owner of the work is the hiring party. If the work is not a work made for hire, the hiring party has no copyright ownership in the work, and its ability to use the work would therefore depend either on the specific terms of its agreement with the author, or upon the concept of an implied license to use the work. If forced to rely on an implied license, the hiring party may find that it has only limited rights to alter, update, or transform the work for which it paid. For example, a motion picture feature may employ dozens of creators of copyrightable works (e.g. music scores, costumes, scripts, sets, sound effects), any one of which could limit use of the entire film by denying permission to copy their contribution; the producers avoid this scenario by hiring the creators as employees or as work-for-hire contractors.

Even when a work is not a work made for hire, the parties can agree to assign copyright rights from the author to the party paying for the creation of the work. Under certain circumstances, the creator may retain some rights to the material following this assignment, either through provisions of a contract surrounding the assignment or through statute. For example, the Copyright Act of 1976 and the Sonny Bono Copyright Term Extension Act of 1998 extended U.S. copyright terms and allowed creators of pre-existing works to reclaim the copyright when the previous shorter term would have expired."

R.
 12/11/2006 06:40:16 PM · #17
Originally posted by Plexxoid:
Originally posted by rex:
tell him to kiss your ass then move on.


I'd much rather make some money than none at all.

Then charge for the use of your ass. LOL!
 12/11/2006 06:49:37 PM · #18
when someone pays you to photograph something, they are paying you to take the pictures, they are not paying you for use of the actual images. they do not own them, you do.

trust me, i've been part of my family's studio for over 7 years, and the studio has been around since 1896. we do this for business clients many many times per week. i know what i'm talking about! :)
 12/11/2006 06:53:31 PM · #19
If he's claiming you're just an employee then he owes you half of your social security taxes, health benefits, etc. Perhaps you should bring those up.
 12/11/2006 06:56:26 PM · #20
FYI - There's really no upside to doing "work for hire"
 12/11/2006 06:57:50 PM · #21
Originally posted by Spazmo99:
FYI - There's really no upside to doing "work for hire"


For a $--tload of money there is :)
 12/11/2006 08:26:46 PM · #22
you REALLY should go tell him to F off and let him know the price just went up to $600.

He has NO CLAIM TO THE COPYRIGHT

Message edited by author 2006-12-11 20:27:08.
 12/11/2006 09:00:38 PM · #23
Originally posted by alfresco:
Originally posted by Spazmo99:
FYI - There's really no upside to doing "work for hire"


For a $--tload of money there is :)


yeah, but there better be a nice big number followed by a lot of zeroes before the decimal point.
 12/11/2006 10:00:43 PM · #24
Originally posted by Bear_Music:
"Work for Hire" is a very specific thing under the copyright laws, and it does NOT mean "I hired you to take the pictures so I own them."

Here's what Wkipedia says:


Always my first destination for accurate, up to date legal advice...
 12/11/2006 10:34:55 PM · #25
What kind of work is this for?
Did you talk about the actual images beforehand??
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