Legal question

[Blueharon]

Let me start off by saying I'm a hobbyist. Not professional. Anyway a few years ago I worked at a Walgreens photo lab. The pictures on display sucked so I asked if I could print mine for display purposes. They said yes and I could take home the prints when they were done with them. Now I found out they are selling the photos. Is it worth it to fight them? How would I go about it?

 

[Light Guru]

Sounds like you need to contact a lawyer.

 

[bribrius]

Let me start off by saying I'm a hobbyist. Not professional. Anyway a few years ago I worked at a Walgreens photo lab. The pictures on display sucked so I asked if I could print mine for display purposes. They said yes and I could take home the prints when they were done with them. Now I found out they are selling the photos. Is it worth it to fight them? How would I go about it?

acting as their employee, taking photos. displaying the photos in the store in the department you worked in.

You sure the photos don't belong to them ? you did take them or at least place them as a act of employment.

 

[480sparky41 40]

First things first.

What country you're in will determine any legal recourse available to you.

Since you mention Walgreens, I would assume US. So my next question would be if you registered the images with the US Copyright Office.

If that answer is "no", I'd say your pretty much hosed.

 

[bribrius]

First things first.

What country you're in will determine any legal recourse available to you.

Since you mention Walgreens, I would assume US. So my next question would be if you registered the images with the US Copyright Office.

If that answer is "no", I'd say your pretty much hosed.

i thought copyright was automatically assumed to be that of the photograph taker regardless of registration? i only questioned his employment consideration in establishing copyright. I don't know of anyone that has registered their photos.

 

[tirediron]

What did your contract with them say about it?

 

[Gary A.]

First things first.

What country you're in will determine any legal recourse available to you.

Since you mention Walgreens, I would assume US. So my next question would be if you registered the images with the US Copyright Office.

If that answer is "no", I'd say your pretty much hosed.

i thought copyright was automatically assumed to be that of the photograph taker regardless of registration? i only questioned his employment consideration in establishing copyright. I don't know of anyone that has registered their photos.

Registering the image give you the most copyright protection and makes it easier to be awarded money if you win a claim. It costs around $45 to open up an account I don't know if there is any charge for registering individual items.

 

[TCampbell]

I'll start with the classic "I am not a lawyer" disclaimer and you really should ask someone who is a lawyer if you want correct answers.

But... there are several questions.

Did you take the images on company time (were you on the clock?) Was taking images part of your job description? Is there any way they could claim you were somehow hired, paid, or that it was part of your job description to do this? If the answer to any of that is 'yes', then they may be able to claim legal ownership of the images.

But let's presume the answers are all 'no' and that you're fully within your rights to pursue compensation for copyright infringement.

This brings us to the question of whether or not the images in question were "registered" with the copyright office. In most jurisdictions, if you took it on your own time (not as an employee or under hire by someone else) then you own the copyrights. But that doesn't mean it's "registered".

If the works are "registered" then the damages can stack up.

if the works are not registered... then usually your damages are limited to what you would have been paid had you sold them. So they'll count up how many images were sold... estimate a value (the value has to be realistic... I can't claim my image is worth $10k each if I've never managed to sell one even for $50... so you have to be prepared for that.)

Ok, so let's assume they sold 25 prints and they were sold for $10 each (this is Walgreens... so they're probably not selling these things at art gallery prices.) That's $250.

If you're limited to collecting that $250... now you have to find a lawyer who will take a case for that. They won't work on contingency because their cut would be less than the value of the time investment they'd need to make. You would not want to pay their hourly rate because you'd spend more for the attorney then you'd collect.

You may have to chalk this up to a valuable lesson and move on.

 

[480sparky41 40]

i thought copyright was automatically assumed to be that of the photograph taker regardless of registration? i only questioned his employment consideration in establishing copyright. I don't know of anyone that has registered their photos.

As soon as you take a photo (by US copyright law), yes, you do have a copyright to it. But it cannot be enforced unless the image has been submitted to the USCO.

Legal action for copyright infringement is a federal matter since it's a federal statute. There's no state or county/parish court for infringement. Nor is 'small claims' an option. It's a federal court. And only images that have been registered with the USCO will have a case heard. IMS, this is specifically addressed in the copyright law itself.

 

[astroNikon]

.. and then your employee manual may scuttle your ideas. Many employee manuals have statements such as "any item created or done on premises whether intellectual or not is wholly the property of <company>". This is why GM owns patents and not it's employees, and about every other company out there. This is also why if you work for a Camera Studio that your "shots" aren't your property. Here you are bringing your photos into work, printing them there, providing them free of charge to the employer for what they see fit. If there was no contract then there is no limitation on Employer .. but consult a lawyer. Probably cost more in lawyer fees than what would be returned, if any. Large organizations also seem to like to counter sue at the same time, so be careful. Lay out all the employee manual, contracts, who said what (though won't matter much) to a lawyer and let them go through it.

 

[KmH]

Get the straight scoop by visiting the US Copyright office web site.

You can register lots (100's) of photos all at one time for $35 online.
It costs $45 to register your copyrights using paper forms.
Published photos have to be registered separately from unpublished photos.

What's An Infringement Worth? | Photo Attorney
Help! I've Been Infringed! | Photo Attorney
Two Easy Steps for Using the DMCA Takedown Notice to Battle Copyright Infringement | NPPA

As far as Work For Hire (WFH) - see:
http://copyright.gov/circs/circ09.pdf

Agency Law
To help determine who is an employee, the Supreme Court in Community for Creative Non-Violence identified factors that make up an “employer-employee” relationship as defined byagency law. The factors fall into three broad categories.

1. Control by the employer over the work. For example, the employer determines how the work is done, has the work done at the employer’s location, and provides equipment or other means to create the work.

2. Control by employer over the employee. For example, the employer controls the employee’s schedule in creating the work, has the right to have the employee perform other assignments, determines the method of payment, or has the right to hire the employee’s assistants.

3. Status and conduct of employer. For example, the employer is in business to produce such works, provides the employee with benefits, or withholds tax from the
employee’s payment.

These factors are not exhaustive. The Court left unclear which of these factors must be present to establish the employment relationship under the work-for-hire definition. Moreover, it held that supervision or control over creation of the work alone is not controlling.

However, all or most of these factors characterize a regular, salaried employment relationship, and it is clear that a work created within the scope of such employment is a work made for hire (unless the parties involved agree otherwise).

Examples of works made for hire created in an employment relationship include:
• A software program created by a staff programmer within
the scope of his or her duties at a software firm
• A newspaper article written by a staff journalist for publication
in the newspaper that employs the journalist (who
is not a freelance writer)
• A musical arrangement written for a music company by a
salaried arranger on the company’s staff
• A sound recording created by salaried staff engineers of a
record company

The closer an employment relationship comes to regular, salaried employment, the more likely it is that a work created within the scope of that employment will be a work made for hire. But because no precise standard exists for determining whether a work is made for hire under part 1 of the definition
in section 101 of the copyright law, consultation with a lawyer may be advisable.

If a work is made for hire, the employer or other person for whom the work was prepared is the author and should be named as the author on the application for copyright registration. Respond “yes” to the question on the application about whether the work is made for hire.

If the copyright for the photos in question have not been registered with the US Copyright office your attorney cannot file an infringement action in federal court until that process has at least been started. See USC Title 17 §411 · Registration and civil infringement actions

A qualified attorney will want about $5000 as a retainer to get started. If your attorney can prove an infringement was willful, the court has the discretion to include all your court fees and attorney costs to a damage award.

 

[Bobby Ironsights]

If your legal rights are being violated, and you do your research, and a cease and desist letter is ineffective, and the sum you are demanding in compensation is under a certain limit(25k here in Ontario), you can file a claim in small claims court for a nominal fee and act as your own attorney. Walgreens would need to use an actual lawyer, and would be likely to settle the case.

I don't know much about U.S. small claims court, but small claims here is a mere $75 to file.

 

[480sparky41 40]

I don't know much about U.S. small claims court, but small claims here is a mere $75 to file.

As I stated before, copyright infringement is a federal matter in the States. You can't file in small claims.

 

[vintagesnaps]

You worked there a few years ago? I'm just wondering why this has come up now or how they still have your photos - did you take down your prints and take them with you when you left?

It would probably depend on what your job description was or what your job duties included, and if you used their paper & ink and equipment and did this on work time I'm not sure if this might have been considered to be job related at the time.

Are photos being sold as prints in the store? I don't think I've seen that done in a drugstore in my area.

There's info. here related to copyright and usage etc. American Society of Media Photographers
You'd own the copyright for photos you took but I think would have to register them to pursue the situation (or at least it would be a help to have them registered). I think you can still register photos after they've been used.

 

[James Baranski]

Forget about it. As an employee you let them use it.