Category "Contracts"

California Labor Laws And Work Made For Hire Agreements

Question from a reader about California labor code and an answer from Carolyn and Leslie at the Photo Attorney.

Q. I’m sorry to bother you but I have a question that has not been addressed on any professional photography or photography related website that I can find. In CA the labor code makes work for hire when transferring the ownership of copyright illegal (civil and criminal liability) except in the case of an employer/employee relationship. How does this apply to photographers working in CA when doing small jobs? Is it legal to have work around language that assigns copyright to the person doing the hiring (meaning the agreement says everything a work for hire agreement would say but it doesn’t use the term work for hire); or is it a case of walks like and duck, quacks like a duck, it is a work for hire agreement and therefor illegal in the state of CA?

A. Thank you for this important question.  The issue is not that it’s illegal for an independent contractor to agree to a work made for hire agreement in California.  The problem is that when a photographer is hired under a work made for hire agreement, then the photographer, under California state law, is considered an employee rather than a independent contractor.   Specifically, California Labor Code section 3351.5(c)provides that one definition of an “Employee” is:

Any person while engaged by contract for the creation of a specially ordered or  commissioned work of authorship in which the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire, as defined in Section 101 of Title 17 of the United States Code, and the ordering or commissioning party obtains ownership of all the rights comprised in the copyright in the work.

California Unemployment Insurance Code Section 686 also states that:

“Employer” also means any person contracting for the creation of a specially ordered or commissioned work of authorship when the parties expressly agree in a written instrument  signed by them that the work shall be considered a work made for hire, as defined in Section 101 of Title 17 of the United States Code, and the ordering or commissioning party obtains ownership of all of the rights comprised in the copyright in the work. The ordering or  commissioning party shall be the employer of the author of the work for the purposes of this part.

Once the photographer is an employee, the employer must pay unemployment and worker’s compensation insurance for the employee.  If not, the employer can be subject to one year in jail and up to $20,000 in fines (California Labor Code section 3700.5 and California Unemployment Insurance Code Section 2122).

But there is another way.

If the photographer is operating through a business entity (such as an LLC or corporation), then the Labor and Unemployment Codes don’t apply.  If the photographer is an individual/sole proprietor, then don’t use “Work Made for Hire” language in the Agreement.  Instead, you may assign the copyrights to another through language such as:

Photographer irrevocably transfers and assigns to the Client the copyrights created as part of the project.

Of course, if a photographer agrees to transfer copyrights, hopefully it will be for an appropriately large sum.  And when a photographer hires someone (like a designer) and wants ownership of the material created, also be careful not to violate these laws.  All of this is part of knowing your rights and responsibilities as a professional photographer!

Carolyn E. Wright and Leslie Burns, Law Office of Carolyn E. Wright, LLC (a/k/a the Photo Attorney)


Reader Question: All Rights Contract

- - Contracts, copyright

A reader asked me a question about all rights contracts and I thought I’d see if anyone wanted to offer advice in the comments. My initial reaction to anything like this is “what’s in it for you?” If you’re not getting paid to give up your rights and you can’t use the images to market yourself then you get nothing out of the deal. I also believe it locks you in to this type of deal with this client going forward.

Last year I got a call out of the blue from an ad agency in [Redacted] for a photo assignment. I eagerly took it, turned in the work, and before they paid me they sent me a contact. The contract required me to transfer all rights to the photos. The main part I objected to was that I wouldn’t be able to use the work even in my own portfolio.

I’ve not gotten another assignment from them, but they sent me another contact … a work for hire contact. Again, all rights. Is this normal with ad agencies? I just e-mailed my contact at the company and pointed out that my rates are reasonable, I do good work and I meet deadlines. It hardly seems like it’s much to ask that I at least be able to use my own work to promote my own work.

As a commercial photographer, I’m very inexperienced, so I thought I’d see what your advice would be.

APA Recommends That Members Do Not Sign Getty Agreement

- - Contracts, Stock

I wrote about the new Getty contract in early April (here) and there was some excellent discussion in the comments about the whole deal, so I thought I’d bring this latest announcement by the American Photographic Artists (APA) to your attention. In a statement the APA said “Adopting baseless, self- imposed deadlines and threatening to terminate contributors who do not accept changes to their existing contracts is not acceptable. As a community, we cannot continue to ignore Getty Images’ efforts to intimidate and strong-arm contributors, and we must not allow Getty Images to force contributors into signing these new contracts under duress.”

The APA contacted Getty through their lawyers asking them to extend the deadline and make clear to all contributors that not signing the agreement will not result in the automatic termination of prior agreements or removal of all their images but Getty refused to respond.

The signing deadline has passed, so I’m wondering if the APA is going to file a lawsuit.

You can download the statements (here).

UPDATE: The AOP (Association of Photographers) agrees with APA that “these changes are unacceptable and that the ‘solutions’ that Getty Images has offered are entirely inadequate and fail to resolve even the most basic concerns.” Read it (here).

Meredith Would Like To Sublicense Your Works

- - Contracts, Magazines

I heard from an agent who sent me this clause from a “non-modifiable” agreement that Meredith Corporations pushes which basically says they can sell the images of photographers who shoot for them to third parties for anything they choose, including advertising. We’re curious if anyone has gotten it removed or if people are just saying eff-it and shooting for them anyway? After seeing this the agent declined the shoot.

b) Creator further hereby grants to Meredith a non-exclusive ongoing, unlimited, non-cancellable, royalty-free, worldwide license to use and sublicense the Works, including, but not limited to, the rights: i) to reproduce the Works or portions thereof in all forms, works and derivative works; ii) to edit, abridge, adapt, translate, or modify or alter the Works; and iii) to publish or authorize publication of the Works in any media now known or hereafter developed, throughout the World.