Need copyright info

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Archive 2008 · Need copyright info

hthrlu
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p.1 #1 · Need copyright info

I am posting this on the pro forum in hopes that you all know more about copyright than I do. I worked as a manager for a business for a few short weeks, and while there, spent time, on the clock, taking product pictures for some promo items. I put them on the website.

Two weeks ago, I was fired. I took down my pictures from my online album, which had been a link for her website. I found out today that she has put my pictures back online without my permission.

My question is...Do I have any legal ground to stand on? I took the product pictures while on the clock, but I never formally gave her any rights to them. I appreciate any feedback.

Thanks,
Heather

Dec 15, 2008 at 11:18 PM

RDKirk
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p.1 #2 · Need copyright info

My question is...Do I have any legal ground to stand on? I took the product pictures while on the clock, but I never formally gave her any rights to them. I appreciate any feedback.

That's a matter for your lawyer, and I'm not just saying that as a standard boilerplate, but because this kind of situation actually is a "maybe, maybe not" kind of case.

It's generally true that your ownership of copyright is quite strong, even when you took pictures while employed.

From an employer's point of view, being able to safely own the copyright of an employee's work calls for specific language that the employee's photography is part of his job and that the employer owns the copyright of any work produced by the employee.

Absent that kind of specific language...maybe, maybe not. Cases have gone both ways.

Your case is stronger if photography was definitely not part of your job description.

Dec 15, 2008 at 11:34 PM

mdude85
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p.1 #3 · Need copyright info

hthrlu wrote:
I took the product pictures while on the clock, but I never formally gave her any rights to them.

Thanks,
Heather

Can you explain this part a little bit more ?

Dec 15, 2008 at 11:37 PM

hthrlu
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p.1 #4 · Need copyright info

Thank you for your response. Photography was not listed as part of my job description, so I will contact an attorney tomorrow.

Dec 15, 2008 at 11:37 PM

mdude85
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p.1 #5 · Need copyright info

hthrlu wrote:
I will contact an attorney tomorrow.

Good idea Heather, good luck.

Dec 15, 2008 at 11:43 PM

Nathan Whitchu
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p.1 #6 · Need copyright info

In many states, including NY where I live, anything produced while on the clock is work for hire. Most employer are also smart enough to add something along the lines of "and any other work needed in the course of doing business" to get around the pesky job description problems. You got paid to do the work, right? You got paid enough to not only do the photography, but also be willing to host the pictures for her. But now since you were fired you're being spiteful and trying to sue her? I hope you don't need to use her for a reference.

Dec 16, 2008 at 12:39 AM

hthrlu
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p.1 #7 · Need copyright info

Hi Nathan,

Yes, I am spiteful - she fired me because she said that I spent too much time doing "marketing" - which I did most of that in my own time while I was not on the clock. I feel that she misrepresented what she was looking for during my interview, and because of that, I am without a job now. I have two main problems with my current situation - 1) She doesn't have my consent to use the pictures (and this is where I am not sure about the work-for-hire stuff and whether or not she needs my consent), and 2) If she didn't want me to do any of the stuff I did for her, and she fired me for it, why should she benefit from it now? The second point is admittedly where the spite comes in.

I worked for her for only 5 weeks. During my interview, I told her that I would build a strong team for her and increase her sales. While I was on the clock, I created a letter to send to clients who had not been back in over a year, and began sending them out - about 10 per week. I also helped decorate the salon for Christmas, and then took pictures of the Christmas-gift-promo-ideas. While off the clock, I created a myspace page, worked on my pics in photoshop, started creating a website for her, sent out an email to our client list introducing two new stylists which invited clients to come meet them, and created flyers for a few neighboring businesses to invite their employees in at a discounted rate. I was working my butt off for her and she fired me because I wasn't reading some stupid books that she wanted me to read (having been a manager, I would consider that something that could be corrected, not necessarily reason for termination). Ultimately, I want to know what my rights are.

Thanks,
Heather

Dec 16, 2008 at 01:25 PM

Nathan Whitchu
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p.1 #8 · Need copyright info

I wouldn't work in a hair salon if it was the only thing saving me from starving. My mother is a hair stylist and I've grown up in and around salons for the first 16ish years of my life. Nothing but drama and cat fights. I'm not surprised that this situation came out of a salon. That being said, back to the real topic.

Your rights are (most likely) next to nothing. I'm not a lawyer but I would bet that your work 'on the clock' is considered work for hire, especially considering your job description seemed to be something along the lines of marketing and increasing her sales, which photographing for a web page would certainly fall under. Working on your own time was voluntary, you might have some sort of labor law case if she FORCED you to work off the clock and punished you for not working but you would have a hard time proving that without some sort of witnesses. You can talk to a lawyer, but this is civil court so expect to spend a lot of money before even seeing a judge, who will probably see straight thru this and rule against you.
If you seriously had a problem doing the photography as part of your job, THEN was the time to bring it up. It's time to chalk this one up to working for a shitty boss, and move on. We've all had them, some of us have been fired for bogus reasons, but we all survived. Grow up and save your righteous indignation for something real.

Dec 16, 2008 at 01:42 PM

mdude85
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p.1 #9 · Need copyright info

Nathan Whitchu wrote:
But now since you were fired you're being spiteful and trying to sue her? I hope you don't need to use her for a reference.

I'm going to jump to conclusions here and assume that if this person was fired (as opposed to just being laid off) that she probably wouldn't be seeking a reference from her former employer.

Dec 16, 2008 at 09:38 PM

RDKirk
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p.1 #10 · Need copyright info

In many states, including NY where I live, anything produced while on the clock is work for hire.

That's not a state-level judgment. Copyright court is federal. It is not true that anything produced on the clock is work for hire.

Dec 16, 2008 at 10:36 PM

Nathan Whitchu
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p.1 #11 · Need copyright info

RDKirk wrote:
In many states, including NY where I live, anything produced while on the clock is work for hire.

That's not a state-level judgment. Copyright court is federal. It is not true that anything produced on the clock is work for hire.

quick google search shows http://nysstlc.syr.edu/Law_Resources/Law_Library/Copyright/WorkforHire/WorkforHire.aspx

The work for hire doctrine can be found in the Copyright Act at 17 U.S.C. §201(b):

In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright.

This section must be read in a larger context in order to be understood. As with all parts of the Copyright Act, it is necessary to return to Section 101 to see if there is a definition for the term "work made for hire." A work for hire is defined in 17 U.S.C. § 101 as:

(1) a work prepared by an employee within the scope of his or her employment; or;

If the photography was part of his job, they it is work for hire.
He was asked to do it as part of his job, while he was being paid to work.

Dec 16, 2008 at 11:03 PM

RDKirk
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p.1 #12 · Need copyright info

If the photography was part of his job, they it is work for hire. He was asked to do it as part of his job, while he was being paid to work.

Nathan, if you've actually gone through a number of cases, you will see that it's not that clear-cut. The courts have not agreed that every time an employee has taken photographs while "on the clock," he's lost his copyright...not even in every case where he was asked to do it.

Dec 17, 2008 at 01:48 AM

Nathan Whitchu
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p.1 #13 · Need copyright info

RDKirk wrote:
If the photography was part of his job, they it is work for hire. He was asked to do it as part of his job, while he was being paid to work.

Nathan, if you've actually gone through a number of cases, you will see that it's not that clear-cut. The courts have not agreed that every time an employee has taken photographs while "on the clock," he's lost his copyright...not even in every case where he was asked to do it.

As I said, I'm not a lawyer. What I do know is lawyers cost money, the last lawyer I hired cost me $160 an hour. I also highly doubt that a judge is going to rule that taking photographs for a job that includes marketing to raise sales is somehow not work for hire. Especially when she was perfectly willing to do the work, and is only making a stink of it now that she's been fired. But hey, people throw away their money all the time in Vegas on long shots, good luck. Are you going to take the case for her?

Dec 17, 2008 at 02:43 AM


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