Questions about being an in-house photographer at an agency

[Evansmitty]

I work at an ad agency in Florida. I do a lot of video editing and occasionally photography. Photography is my true calling and what I'm best at so my goal is to eventually shift to doing that full time for the agency. The current problem is that the agency doesn't push photography at all and I will need to create the department and sales strategies. That will be a question for another day.

Currently concerned about a couple things. The general rule of thumb in the industry is that he or she who clicks the shutter owns the copyright. Does this rule go out the window when you work for an agency?

My agency has no concept for licensing. Has anyone worked with setting up licensing agreements when the work is being done in house?

Lastly I'm wondering if anyone has ever done this before. Assuming this goes well and I am able to set up a great commercial photography business for the agency I predict that I will become frustrated with the knowledge that I could have made a lot more money had I done it on my own. Anyone else dealt with this?

 

[Destin]

I work at an ad agency in Florida. I do a lot of video editing and occasionally photography. Photography is my true calling and what I'm best at so my goal is to eventually shift to doing that full time for the agency. The current problem is that the agency doesn't push photography at all and I will need to create the department and sales strategies. That will be a question for another day.

Currently concerned about a couple things. The general rule of thumb in the industry is that he or she who clicks the shutter owns the copyright. Does this rule go out the window when you work for an agency?

My agency has no concept for licensing. Has anyone worked with setting up licensing agreements when the work is being done in house?

Lastly I'm wondering if anyone has ever done this before. Assuming this goes well and I am able to set up a great commercial photography business for the agency I predict that I will become frustrated with the knowledge that I could have made a lot more money had I done it on my own. Anyone else dealt with this?

It's going to depend on a million things, some of which may be state specific. Remember that anyone who answers here is (likely) not a lawyer well versed on the subject, so take their advice with a grain of salt.

Generally if you're taking photos under contract for someone else, they can own the copyright, depending on what agreement you two have in place. Second shooters at weddings face this a lot, and because they are contracted by the primary shooter, the primary generally retains the copyright.

If you're being paid hourly or on a salary while you take the images as part of your employment, I would have to believe that the images belong to your employer. But again, I'm not a lawyer.

 

[Overread]

I'd be concerned about working for an advertising agency which "has no concept for licensing". The basics of copyright and licences should be a core part of their contract setups and work for hire/staff when it comes to creation of material for the adverts.

As for starting your own company underneath their company as such that will be hard. You can either run it yourself as a second job and build it up or run it in-house. Sure you might get more running it outside of their operation but you might also get more actual work running it through their operation and thus through their already established market and contacts.

That said it sounds like you need some proper legal advance from a copyright lawyer in your state/country before you can even continue. Heck if your agency hasn't got much licence/legal understanding chances are they'd be better to invest in that than into more creative ventures!

 

[astroNikon]

I used to work for McCann-Erickson ad agency. Of course we created magazine (still photos), tv (10, 15, 30, 45, 60 + second commercials.

They of course create advertising for their customers.
I recall reading the contract, etc (a long time ago) which essentially as an employee you are creating content for the Employer and it's their licensed work. Even when dealing with contractors you are contracted (and paid) to create content for your Employer.

The Employer then has a contract with the Customer to provide xx amount of content.

Nowadays I would think more video is more advantageous than being a still photographer.
You'll have to look at print and online still ads
versus a big push now for video ads.

But you are creating content for the Employer who is under contract to provide xx product for the Customer.
You don't own the rights to content created as an Employee.

Of course, read your own particular contract in detail and consult a lawyer for more specifics of you particular situation.

Think about it .. if the Employee owned the content, then the Employee could sue the Customer using content provided by the Employer. And the Employee could sue the Employer at any time even if they put it in storage for future potential use.

But if the organization you work for has no clue about licensing, then they might want to hire a law firm in Content, Media and Entertainment (or what ever it's called today) to help them get a grasp on all that stuff.

 

[Designer]

Currently concerned about a couple things. The general rule of thumb in the industry is that he or she who clicks the shutter owns the copyright. Does this rule go out the window when you work for an agency?

A "rule of thumb" has no credibility if you should be sued someday.

To protect your own interests (not the firm's) YOU hire a lawyer, get a contract written that specifically states who (YOU) own the images forever, and the copyright is held in your name (and is assigned to your heirs).

If the company balks at signing that contract, you can negotiate, but always have your lawyer involved in the negotiations.

 

[Evansmitty]

Thank you , everyone. This is all very helpful insight. I've just posted a follow up thread asking for advice about building this photography department in case anyone would like to chime in there as well

Building a commercial photography department

 

[KmH]

US Copyright Law has a section that deals with Work For Hire - Section 101.
https://www.copyright.gov/circs/circ09.pdf
As an employee making photos for the company as your job they own the copyrights if, in writing, they make that a term of your employment.

If you are an independent contractor you own the copyrights unless, in wiring you transfer your copyrights to the client. Transferring your copyright would not be smart business, unless your goal is to go broke as quickly as possible.

Section 101 of the Copyright Act (title 17 of the U.S. Code) defines a “work made for hire” in two parts:
a. a work prepared by an employee within the scope of his or her employment or
b. a work specially ordered or commissioned for use
1 as a contribution to a collective work,
2 as a part of a motion picture or other audiovisual work,
3 as a translation,
4 as a supplementary work,
5 as a compilation,
6 as an instructional text,
7 as a test,
8 as answer material for a test,
or 9 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.

 

[Jamesaz]

Everything is negotiable. I worked 27 years at a utility company as staff photographer. It was a good gig but everything I shot that had a job number belongs to them. I got my house paid off, good insurance and a pension. Fair trade, in my opinion.

 

[fmw]

Commercial images belong to the client, not the photographer or the ad agency. You bill for time, materials and expenses and walk away. If you think a client is going to pay every time he uses an image he paid you to create, then you are kidding yourself. Sorry. Go with the stock photography. It is way cheaper and readily available.