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[tracepowers]

I have a question about who owns the copyright of some photos I took.  I was taught in my journalism classes that photographs are your intellectual property and you as the photographer own the copyright as soon as that shutter button clicks.  I used to work at a horse breeding farm and took quite a few photographs while I was there - some of them during work hours for clients, some of them on my own time.  After I quit, my ex-boss is planning to sue me to give up all those pictures.  She says since they were taken on her property, they legally belong to her.  Is she right?  I worked hard on a lot of these, and I don't want to give her rights to them.  Any insight would be much appreciated!

[Smokin]

She is full of shit. The photographs belong to you.

The only reasonable argument that can be made, is if the photos were taken without permission, she could theoretically say its an invasion of privacy since they were taken on private property and even then it prob would be a hard thing to convince a judge that privacy was violated. If however it was part of your job description to take photos, then your ex boss is right and owns the rights to the work (work for hire).

I suggest you register the work immediately. If the owner uses them without permission, she is willfully infringing on your copyrights and can be successfully sued.

[tracepowers]

Thank you for your quick reply!

How do I register them?

[tracepowers]

It also wasn't in my job description that I have (only in email form), so technically all the photos belong to me?

[artchain]

I'd be careful about jumping to conclusions on the job description.

Did you ever take photos for the employer?  Did the employer ever ask you, specifically, to take a photo?  Did you take photos for the employer's clients in the course of your normal work?

While the "I own the property" argument doesn't affect copyright, the employer could argue that the photos were work-for-hire produced in the course of your regular employment, even if that is not explicitly stated in your job description. 

With regard to registering copyright, you can do that on the US copyright office website, at http://www.copyright.gov/ 

[tracepowers]

In that case, the photos that I took at work are legally hers (which i was already going to give her), but she can't take the ones that I have done on my own time that were not a part of any work projects.  Is that correct?

[Smokin]

While the "I own the property" argument doesn't affect copyright, the employer could argue that the photos were work-for-hire produced in the course of your regular employment, even if that is not explicitly stated in your job description.

Thats not quite accurate. The work needs to be within the scope of your employment for the work to be considered a work for hire, simply asking your gardener while he/she s on the clock to paint you a masterpiece doesn't give the employer rights to that painting. If you were hired for the purpose of taking photos, and you are not considered an independent contractor (i.e. owner provided camera and equipment, directions, w2), then she could have a claim for the rights to the images as a work for hire.

To register your work, visit the US gov copyright website for more info.

It would clarify things a bit to understand what you were hired for. I am unclear if this was a side job or a "journalism/photography job" that you were contracted for. If you were say the guy who cleaned up poop, then the owner has no rights to any images and anything you give the owner is really a courtesy and a favor. Doesn't matter if you were taking pics on the clock or off the clock, all the images belong to you.

[Isaac]

While the "I own the property" argument doesn't affect copyright, the employer could argue that the photos were work-for-hire produced in the course of your regular employment, even if that is not explicitly stated in your job description.

Thats not quite accurate. The work needs to be within the scope of your employment for the work to be considered a work for hire

The quoted comment was completely accurate.  The employee might well make the argument, and the fact that the written job descriptions do not list photography would not necessarily be a winning argument for the employee.  Your comment does not even conflict with the quoted comment.

, simply asking your gardener while he/she s on the clock to paint you a masterpiece doesn't give the employer rights to that painting.

Taking photos of your employer's clients is a lot different from painting a masterpiece.   Taking photos upon request by the boss would almost certainly be a work for hire for all but the most menially tasked any employee.  Arguably, most things the boss asks you to do on the clock are within the scope of your duties.

The more difficult questions involves photos taken off the clock and (to a lesser extent) self initiated activities.

[JSonnabend]

Taking photos of your employer's clients is a lot different from painting a masterpiece.

How so?

- Jeff

[Isaac]

Taking photos of your employer's clients is a lot different from painting a masterpiece.

How so?

- Jeff

I think I explained my reasoning.  The argument that taking client photos at the boss' request isn't your job seems weak, although I can imagine some facts that might make the argument a bit stronger.  On the other hand, if the employer asks a gardner to do a Mona Lisa knockoff, an argument that the painting task was a side deal outside of the garner's normal duties seems more reasonable.

[JSonnabend]

I think I explained my reasoning.  The argument that taking client photos at the boss' request isn't your job seems weak, although I can imagine some facts that might make the argument a bit stronger.  On the other hand, if the employer asks a gardener to do a Mona Lisa knockoff, an argument that the painting task was a side deal outside of the gardener's normal duties seems more reasonable.

Seems like a weak (or overly contrived) distinction.  If the poster is a bookkeeper, is a photo outside the scope?  What if she's asked to paint a portrait instead of a photo?  What if she's a P.R. person?  Or a horse trainer?

The test for "within the scope of employment" generally includes analysis of the "kind of work plaintiff was employed to perform."  Whether or not the work is a photo or a painting is besides the point, unless, of course, the person was hired to do one but not the other.

Likewise for your "your boss asked you to do it so its within your scope of employment" argument. It isn't "weak", as you suggest, it's the law.

Bottom line, if you ask your bookkeeper to shoot some head shots of your clients, then the bookkeeper is likely the author of those photos.

- Jeff

[Isaac]

Seems like a weak (or overly contrived) distinction.  If the poster is a bookkeeper, is a photo outside the scope?  What if she's asked to paint a portrait instead of a photo?  What if she's a P.R. person?  Or a horse trainer?

The example was for a gardner asked to paint a masterpiece.  I agree that the distinctions are not generally applicable.

Likewise for your "your boss asked you to do it so its within your scope of employment" argument. It isn't "weak", as you suggest, it's the law.

I don't believe I said that argument was weak.  I said the employee's argument to the contrary was weak.

unless, of course, the person was hired to do one but not the other.

Jeff, I think we can also consider what kinds of tasks might be reasonably be within the scope of someone's duties.  Generally speaking, very few employees can complain when they've been asked to do minor tasks on the basis that that those things are not listed explicitly on their job description in HR.   Just about anyone might be asked to snap a few headshots of clients.  The employer would expect the employee to carry the task out to the best of his ability.  But it would be the rare gardner that would be asked to do portraits, as that would require some special skill in order to turn out somehing remotely acceptable.   It would be an even rarer garder that would be asked to paint a masterpiece on the clock.

Bottom line, if you ask your bookkeeper to shoot some head shots of your clients, then the bookkeeper is likely the author of those photos.

I respectfully disagree.

[tracepowers]

I honestly did a little bit of everything at the farm - from poop picking to horse training.  Many of the photos I took were part of the job (even though they weren't listed in my job description) such as taking photos of foals for clients and farm records.  I think that those should legally belong to my ex boss because they were taken on company time.  Is that correct?  But, photography is my hobby, so I spent numerous hours after work or on weekends messing around with my camera.  Those pictures were not at all for a work purpose, so I think those should belong to me?

[Isaac]

But, photography is my hobby, so I spent numerous hours after work or on weekends messing around with my camera.  Those pictures were not at all for a work purpose, so I think those should belong to me?

Photographs that were not taken in the course of your work duties should belong to you.  There can be proof problems with establishing which photos are yours.  If you took off duty photos at the farm of the same kinds of subject matter as your work photos, you may have some proof issues.  Hobby photos taken at the Grand Canyon would be easier to establish as not belonging to the boss.

[JSonnabend]

Isaac, you can respectfully disagree, but you are wrong based on the overwhelming weight of case law.  The courts look in part to see if the work of authorship "is of the kind he is employed to perform".  Run a Westlaw search on that phrase and you'll find scores of recent cases applying that test.

So, your assessment that the employee's case would be "weak" is contrary to law.  If a bookkeeper is asked to snap some photos, he is the author, absent some unusual circumstances.  Bookkeepers aren't hired to take photos, they're hired to keep books.

But, photography is my hobby, so I spent numerous hours after work or on weekends messing around with my camera.  Those pictures were not at all for a work purpose, so I think those should belong to me?

Yes, those photos belong to you, at least from a copyright perspective.  Actions on your own time and not at the behest of your employer (expressly or impliedly from your job description) are not generally considered works for hire.

- Jeff