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[copy1]

My new business partner and I worked as the crew on a whale watching boat and throughout our employment time to time we took our cameras with us and took some pictures of the whales.
During our employment we sent some of the best shots to our bosses to use on their whale watch website.

Recently we are in process of starting our own whale watching business in the same harbor. So we used some of these pictures we took at our website too.

The old bosses telling us that those pictures of the whales were taken from their boat while we were their employees therefore using them will be fraud.

We were thinking that they were our pictures which we shared with them to use since they were taken with our equipment whenever we have our cameras with us or whenever we got a chance to do so..
We also were sharing many of these great whale photos in the past with passengers, friends and family members too.

We were employed as Captain and the deckhand and not the photographers for the company. So we took these photos for our own enjoyment and allowed our bosses to use some of the best ones to put on their website to show how great the whales of the area are.

If Copyright (work-for-hire) issues concerned; For example we had a little FLIP video onboard and our bosses wanted us to record video clips time to time, which we did and since that was done by their request and with their equipment we never used them thinking that all those video clips are belong to them. But not our photos taken with our own equipment.

So, are we in fault of using the photos we took with our own equipment while we were working for our old company?

[copy1]

I forgot to mention that I was not on their payroll as an employee while I was taking those photos as a part of my hobby.
I got paid as a private contractor and cash only for 2,5 months. 
After 2,5 months they eventually put me on their payroll.
And about a month after that I resigned.
So are those photos belong to me or the employer while in that 2,5 months I worked as Captain?
Thanks,

[chugan]

The issue is copyright ownership.  Specifically, your former employer is deemed to be the "author" of the photos IF photography fell within the scope of your employment.  If not, you are the author.  I assume you did not sign some type of assignment prior to your employment.

Also, work-for-hire probably does not come into play for at least two reasons.  First, any work-for-hire agreement (which deems your employer to be the author) needs to be in writing.  Second, the work must fall within a specific work-for-hire category...and the facts you have presented leads me to believe the photos do not.

I think the employer's position is wrong.  Of course, every case turns on its own facts so you want to consult local IP counsel to get a complete analysis.

Chris

http://nashbillies.wordpress.com/

[artchain]

Recently we are in process of starting our own whale watching business in the same harbor. So we used some of these pictures we took at our website too.

The old bosses telling us that those pictures of the whales were taken from their boat while we were their employees therefore using them will be fraud.

Are the owners claiming copyright of the photos, or are they saying that using photos from THEIR cruises to represent YOUR business is fraudulent?

[copy1]

Yes they are claiming it to use these photos at our website is fraudulent because they were taken from their boat.

But the photos are of the whales and dolphins and other wildlife.
We are not promoting her old boat as our boat or nowhere in our website we say these photos are from our trips.
We clearly indicated at our website that our trips will begin in February 2011.
So those photos are taken by us at other times some from their boat, some from other boats, some from shore.
We post these pictures in a slideshow only to show people what kind of wildlife exist in the area we are going to operate in addition to show one of our impressive artful wildlife photo which was recognized by National Geographic.
How a photo of an otter living in the harbor does matter to represent their or our trip. It's the photo of the same otter no matter which boat we took the photo from.

Am I wrong?

[artchain]

I believe you are in the clear.

Since you were a contractor, and there was no written work-for-hire agreement, you own the copyright to the photos.

And it does not sound like the photos in any way misrepresent your business, or attempt to associate your business with the old boat.

Of course, people sometimes sue you without good grounds, so you can never guarantee there won't be repercussions.   But any lawyer your former boss contacts would probably tell him he has no case.

[copy1]

Exactly that was my idea too.
I gave my old bosses permission to use my photos on their website and share with anybody they want when I was working for them.

Now that I am establishing my own business in the same field and in the same geographic area, I also use my own photos to promote and reference the wildlife in the area too.
So nothing is exclusive to their tours that you can't see on any other tour. Every tour boat shares the view of the same species in the area.

Imagine a San Diego Bay tour by boat. No matter which boat you took the photos you'll see the same San Diego skyline.
When you post a photo you took of the San Diego skyline to your new website does it really matter where you took it?
Especially if they were used to show how San Diego skyline looks from the ocean?
And, if one of your photos recognized by a well known publication who takes the credit? The property owner where the photo was taken or the photographer?