HELP! This is a serious question, and yes I'm ignorant! - rights to photographs

[itsanaddiction]

Ok so I worked for a student housing company. They were paying this photographer $500/property to take these HORRIBLE pictures. Well I and my regional opened our big mouths and said I could do it better. Not being smart, I did not request/demand any money for the images. One property led to an additional 6 when I switched regions. Since then, I was wrongfully terminated and am in the process of getting money owed to me. I am wondering if I have any rights to the photos considering I was an employee and just "handed them over". Can I have them remove them and pay me? Or was I ignorant and just gave away thousands of dollars worth of images. (PS These are used on their websites, brochures, billboards, etc.)

And before you answer, yes, I made an ignorant move, but no, I did not think I would ever A)leave the company of my own accord and B) be terminated considering I was working 12-16 hours a day but yayy for being salary right (sarcasm).

 

[Kerbouchard]

Since it's going to be asked anyway, 'What does your contract say?'

With no contract, and you just handing over the images, it may be considered a work for hire situation. Did you use their gear or your own?

 

[MissCream]

I was just going to say, "I hate being this person but did you sign a contract"?.

 

[BlairWright]

If you were doing that job as work for someone else you lose your rights. Same thing if you work for Phizer and invent the cure for cancer.

 

[skieur]

It depends on your original job description and what you signed when you first got hired. If there is nothing in what you signed that mentioned photos and nothing in your job description that indicates photography as part of the job, then you would probably still own the rights to the photos.....if what you mentioned is accurate and complete.

skieur

 

[KmH]

Yep! ↑ ↑ ↑ ↑

See http://www.copyright.gov/circs/circ09.pdf

Statutory Definition

Section 101 of the copyright law defines a “work made for hire” as:
1. a work prepared by an employee within the scope of his or her employment....
[/quote]

Important:
The term “employee” here is not really the same as the common understanding of the term. For copyright purposes, it means an employee under the general common law of agency.

According to the information in Circular 9, if your job description did not include making photographs, and there is no written agreement making it a work for hire situation, you own the copyright to all of the photographs you made.

However, if you did not register your copyrights with the US Copyright Office, you have little legal leverage. Your copyrights would have to be registered before you could initiate a copyright legal action in federal court.

USC 17 §411 (United States code - Title 17, Paragraph 4, Section 11)

(b), no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title.

There is a 3 month time limit on registering your copyrights relative to when an infringment occured. That limit has to do with the type of damages you can file an action for. The statute of limitations on copyright is much longer. Statute of Limitations for Copyright Infringement Claims | Photo Attorney

Copyright infringement claims have a three-year statute of limitations from the date of the “last act” of the infringement.

At any rate, most of the information you need is found at www.copyright.gov.

Why should I register my work if copyright protection is automatic?

Registration is recommended for a number of reasons. Many choose to register their works because they wish to have the facts of their copyright on the public record and have a certificate of registration. Registered works may be eligible for statutory damages and attorney's fees in successful litigation. Finally, if registration occurs within 5 years of publication, it is considered prima facie evidence in a court of law. See Circular 1, Copyright Basics, section “Copyright Registration” and Circular 38b, Highlights of Copyright Amendments Contained in the Uruguay Round Agreements Act (URAA), on non-U.S. works.

 

[itsanaddiction]

Thanks y'all! I was the Area Director of Leasing & Marketing and no where in my terms of employment were there talks of photography. But, per KMH, they were not copyrighted and were taken in June so it's past the 3 month lesson. I really wish I could either make them stop using them or pay me to use them, but again ignorant I know!!

 

[Kerbouchard]

Thanks y'all! I was the Area Director of Leasing & Marketing and no where in my terms of employment were there talks of photography. But, per KMH, they were not copyrighted and were taken in June so it's past the 3 month lesson. I really wish I could either make them stop using them or pay me to use them, but again ignorant I know!!

I have never seen an employment contract or a job description that doesn't include a phrase like, 'or other duties as assigned.' I could easily see photography of rental propertries being part of the job description of an 'Area Director of Leasing & Marketing'.

In any case, next time you volunteer to do a job that they are already paying somebody else for, perhaps you should get something about the compensation in writing.

 

[KmH]

Thanks y'all! I was the Area Director of Leasing & Marketing and no where in my terms of employment were there talks of photography. But, per KMH, they were not copyrighted and were taken in June so it's past the 3 month lesson. I really wish I could either make them stop using them or pay me to use them, but again ignorant I know!!

Regretably you don't seem to understand, but most amateurs don't so you're sure not alone.
That's why I included the US Copyright Office links, and the link that covered the statute of limitations.

The images were copyrighted, in June, as soon as they were written to the memory card in your camera. Look for a first publication one of your photos within the last 3 months by your former employeer. I highly recommend you contact a qualified attorney rather than seeking legal help online in a photography forum.

Registering the copyrights just secures some legal benefits for you. The most important of which was the ability for your attorney to sue for statutory damages plus your court and attorney fees. You can still register your copyrights, but your attorney would only be able to sue for actual damages.

By the way, the maximum statutory award is $150,000 per infringed image plus all your attorney and court costs. The amount of actual damages is unlimited. But, yes there is a but, actual damages are more difficult to prove. The biggest actual damages award I can recall was $12,000,000 for 6 infringed photo, or $2,000,000 per photo.

 

[Rephargotohp]

What's being overlooked is that as of right now, No infringement has occurred. It doesn't really matter who owns the copyright as of this point.
The images were taken willfully and permission was granted for use with no end dates stipulated. There is no contract stating otherwise. So as of right now, they haven't done anything wrong.

If at some point you ask them to stop, well THEN it comes into play who owns them and even if you do own them you gave them permission to use them and they do not need to OWN the images to use the images as they have been.

Then the other part that people forget is that in Law, there are no Automatics. "The law states this so I win" No you have to prove it in court and unless you have 2 years and $20,000 for something that is worth $500 per (established by the other photographer) You're just talkin

 

[bennielou]

I agree with the above. Unless there is a contract in place saying the copyright was transfered YOU STILL OWN THEM. But then again, you actually had to manually copyright the images. If you didn't then it's a situation for the courts to decide.

 

[KmH]

How do you determine that no infringement has occured? The OP doesn't say permission was given to use the photographs, just that photographs were taken.

Worth further consideration is the multitude of uses the 'student housing company' has initialed - "These are used on their websites, brochures, billboards, etc.)"

As usual with this kind of a thread, we only get one side of the story and the OP is so ill-informed even the side we do hear leaves out a lot of important details.

At least others visiting the thread will get some idea of the possible legal issues a hobby photographer needs to consider before getting involved with doing photography for a business.

At this point the OP could have their attorney send the 'student housing company' a C&D letter recinding any previous, implied or verbally given permissions to use their copyrighted images in any way shape or form. With no written agreement it's the OP's word against the 'student housing company'.

Becuase they were previously paying a photographer, it seems the 'student housing company' could well have understood the legal implications involving the photographs, and knowingly took advantage of the OP's ignorance. It is noteworthy that the previous photographer was apparently paid only $500, which would be a very low fee for photographs used in the range of media the OP mentioned, though it is certainly possible the $500 was just for the photographer's time and talent, and did not include use licensing fees. However, I suspect the $500 was paid to a fauxtographer that left a lot of money on the table because they were ignorant of use licensing.

No doubt, though copyright registration is dirt cheap, starting any kind of litigation that will be adjuducated in the federal court system usually requires some cash outlay, there are legal resources available for those who do not have the financial means to initiate the litigation.