I received the following question from a reader:
I was the staff photographer at a small Canadian magazine and recently quit to start a freelance career. My former publisher has asked me to remove all images in my portfolio and stock site, claiming they own all images I took while employed there. The thing is, I didn’t sign any contract that says they own any of these images. Do you have any thoughts on this or have anyone in Canada who specializes in copyright law that I may be able to contact?
I don’t know anyone who specializes in copyright law in Canada but I do know Carolyn E. Wright, AKA the Photo Attorney (http://www.photoattorney.com), who I recommend to anyone looking for an attorney who specializes in photography and copyright. I asked her to answer the question for US employees because I thought it would be helpful, but if anyone knows how it works in Canada please chime in on the comments.
If you are an employee in the United States, the copyrights to the photos that you take as part of your job responsibilities belong to your employer, not you. When your employer owns the copyrights to the photos, it’s as if you didn’t take them. You have no rights to use them, even for your own portfolio unless your employee gives you a license for such use.
If you are not an employee of an organization, you own the copyrights to the photos you take, even if the organization hired you to take the photos unless you have signed a document (including via an email) stating otherwise. In that case, the hiring company will own the copyrights as a “work made for hire.” See 17 USC 101.
Sometimes, however, you may have a dispute with a company whether you are an “employee.” The court inCCNV v. Reid addressed this issue. There, the court explained:
In determining whether a hired party is an employee under the general common law of agency, we consider the hiring party’s right to control the manner and means by which the product is accomplished. Among the other factors relevant to this inquiry are the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party’s discretion over when and how long to work; the method of payment; the hired party’s role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party.
If you are a full-time employee and do some part-time shooting for the company (because you have the “big camera”) and/or shoot on company time, it is a judgment call as to whether the photography is within the scope of your employment. But if you get a statement/agreement in writing from your employer to confirm that it isn’t, it will be helpful later if there is any dispute.