Who Owns The Images When You Take Pictures As An Employee

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.

In addition, it’s important whether the organization issues a 1099 or a W-2 to you.   To help with understanding this law, the Copyright Office has prepared Circular 9.

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.

It’s Up To Us To Have The Willingness To Act

I criticized Mr. Burtynsky years ago for not being “critical enough” of the criminals responsible for the desecration depicted in his photographs- in a word, I was wrong. There’s no way he could continue to have the access he needs and maintains if he was, in fact, so openly critical. It’s up to us to have the sense to notice, and the willingness to act… if only to save ourselves.

via Reciprocity Failure.

The Daily Edit – Tuesday 9.25.12

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Men’s Health

Creative Director: Robert Festino
Art Director: Thomas O’Quinn
Director of Photography: Jeanne Graves
Senior Photo Editor: Michelle Stark

Photographer: Cody Pickens

Note: Content for The Daily Edit is found on the newsstands. Submissions are not accepted

 

Thomas Ruff has shown an unwillingness to play it safe

For me, the most obvious artist who has consistently demonstrated an openness to use new ideas in photography, who has taken chances with photography and has shown an unwillingness to play it safe is Thomas Ruff. Having worked with all kinds of photographs/images – his own, licensed one, appropriated ones, artificially created one – Ruff’s thinking is far ahead of that of most of contemporary photography. I might not always like each new series, but Ruff’s fearless exploration of the medium photography – of how images can be made – is very, very impressive.

via Conscientious | Towards the 21st Century.

The Daily Edit – Monday
9.24.12

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Vanity Fair

Design Director: Chris Dixon
Photography Director: Susan White
Art Director: Julie Weiss, Chris Mueller
Senior Photo Editors: Sasha Erwitt, Susan Phear

Photographer: Jason Bell

Note: Content for The Daily Edit is found on the newsstands. Submissions are not accepted

 

This Week In Photography Books – Florian van Roekel

by Jonathan Blaustein

It’s the year 2000.

Google is a big number, but not quite infinity. Hanging Chad means the guy who’s always sitting on the couch, next to your roommate Aaron, drinking your beer. The Soviet Union is dead, China has yet to rise, and Americans feel like the world is a big apple tree, and all you have to do is grab what you can.

I’ve just moved to San Francisco, and live in the Mission District with my girlfriend, Jessie. (Now wife.) Dotcom millionaires peek their heads out of limousine sunroofs as they cruise through our neighborhood at night. I get my coffee with a bagel and cream cheese at the cafe on the corner for $1.50.

Tired of waiting tables and ready to be an adult, I get a job at a non-profit, progressive public relations firm on Mission St. The organization, since merged with Fenton Communications, was a spinoff of the famed liberal bastion, Global Exchange. My co-workers are a typically San Franciscified bunch; all colors, sexes, and sexual orientations are represented. (Yes, I’m being literal.)

We were housed within the same building as our Global Exchange brethren. Thick body-odor musk, wafting taqueria fry grease, and a lingering marijuana stench contributed to a healthy, lived-in aroma. Everyone was talking about how they were just in Nicaragua, or Guatemala, and pronounced the names with proper Spanish emphasis. Life was good.

Two weeks in, the ED announced the company was moving to the Embarcadero, right on the Bay. My commute would grow from a short walk to a 30 + minute hassle, requiring BART. And lots of rain.

We moved into a re-done, second floor office, built directly onto the pier. Nice view: seagulls, the TransAmerica tower, the shimmering reflection of the Bay Bridge on the water. Unfortunately, the space inside bore the typical corporate color scheme of gray on gray on gray. Carpets, partitions, office chairs, all gray. Immediately, my job, answering phones, helping to change the world, lost its glamour.

Sure, the higher-ups were battling to make the world a better place. But I was stuck fighting my myopic boss about which garbage cans to buy for under everyone’s desk. Foolishly, I made a rash decision, and was shamed as she slowly circumnavigated the room, interviewing each employee as to their desired preference of trash-bin-recepticle. Chastened, I promised never to make a unilateral decision on matters of such significance.

Days became weeks, and I became less happy as each passed. My naive desire to join the San Francisco non-profit community led me straight into my own, boring-ass version of Office Space. The phones rang, I answered them. The trash filled up, I emptied it. Wow, just writing about it bores me. So lets move on.

One day, I woke up and realized that the average-joe-lifestyle was not for me. Monotonous, sterile, repetitive. Gray on top of gray on top of gray. Please, make it stop.

So I quit, ready to commit to being an artist.

Here we are. It’s 2012, and this week marks my one year anniversary of writing this column. I’m sitting on my favorite green couch, my feet now wedged against my daughter’s crib. I’m headed back to San Francisco in a couple of weeks to check on the art scene, and report back. My how things have changed.

But this wouldn’t be a column if I didn’t write about a book. Today, the above musings were brought to you by Florian van Roekel, who seemingly self-published a super-cool book called “How Terry Likes His Coffee.” Some of you might have seen it before, but the 2nd Edition landed on my book pile, and I’m loving it.

The book is black, with yellow post-it-style sticker on the front. It looks like a fancy pad that you might use to take notes at the Friday Staff Meeting. Straight away, it opens on the doodles that some Terry might have made while studiously not listening to what was going on in said meeting.

Apparently, Mr. van Roekel spent some time in actual office parks in Holland, because you could never fake it so well. (And I’d guess he was influenced by Ricky Gervais’ “The Office” as well.) Even Thomas Demand’s fastidious recreations lack the soul-sucking, stultifying reality of what we see here. I’m having flashbacks. “Hello, Communication Works. This is Jonathan. How may I direct your call?”

The book follows a pattern of my current favorites, which is to include non-photographic imagery, and to create a natural progression. A narrative. A plan. It begins with with office party decorations, file cabinets, cubicle art, the water cooler, jackets on the back of chairs. All the images feature a heavy use of flash, which by now you must know I enjoy. Not everyone does.

Then we’re into the portraits, mostly backs of heads. Awkward. Uncomfortable. Too real to mock, to awesome not to appreciate.

–“Hey Terry, how was your weekend?”

–“Oh, you know, the ususal. Bought some terrific hash at the coffee shop, stared at my reflection in the canal for 45 minutes. Watched a football game on TV. That Robin Van Persie is such a wanker. How about you, Josh?”

–“Oh, you know, the same. Shannon’s mother is in town, though, and you know how that is. Hah, hah. If I’m not careful, she likes to grab my package under the dinner table. Just pour her whisky a bit heavy, though, and she’ll fall asleep before it gets to that.”

After the back of the head shots, and more portraits, the artist moves onto a set of double-images. Slightly, slightly different, but really the same. The sales pitch. The cold call. A terrific metaphor for monotony. If I use the word monotonous one more time, I will have acheieved its effect.

Next comes the office get-together at the pub at the end of the day. No faces here, just shoes, suits, & some sneakers on the ladies who got tired of high heels. Hands on shoulders, hands on elbows, coasters on the table. Routine. Finally, at the end of the book, we see some nature images. A walk in the park on Sunday? Has to be. Right?

Bottom Line: Has somebody got a case of the Mondays?

To purchase “How Terry Likes His Coffee” visit Photo-Eye

Full Disclosure: Books are provided by Photo-Eye in exchange for links back for purchase.

Books are found in the bookstore and submissions are not accepted.

 

A Trend Is Not Your Friend

A fine art photographer should have a lot of patience, should never give up, should never subordinate his beliefs to commerce or money and last but not least, the trend should not be his friend.

–Robert Schlaug

via MULL IT OVER.

Sustainable Business Models: Issues & Trends Facing Visual Artists

Continuing on my post from yesterday where I wrote about photography as a commodity (Mark points out in the comments that a better term is fungible product) several of the panelest from the ASMP symposium on sustainable business models have posts up on the strictly business blog that I want to highlight. If you cannot attend in person there will be a live video feed (here) starting at 9am EST Thursday the 27th.

Richard Dale Kelly on organizing the event:

In organizing the Symposium, Sustainable Business Models: Issues & Trends Facing Visual Artists, ASMP’s Education Director, the late Susan Carr, and I focused on three key areas. We decided to start the day with working professionals who, through their own practices, have discovered sustainable solutions they are using today. Next, we wanted a conversation with users and distributors of visual content who are working at the highest levels of the publishing, advertising and technology sectors who could give us a glimpse of the opportunities behind the curtain. Finally, we brought in industry observers to discuss the challenges facing the professional in creating a sustainable career.

Liz Miller-Gershfeld, VP, Sr. Art Producer at Energy BBDO talks about the “new normal” at an agency meeting:

At the table were creatives and account people from the agency side and a team from the digital end of things. On the phone were teams from the promotional agency, the PR agency and international marketing counterparts. There were a few more voices on the phone.  I’m still not clear who they were, perhaps a wrong number, probably not…  Today clients have multi-channel marketing plans and multiple agencies to accomplish them…and we all have to play nicely.

I need a photographer who has deep human resources…
I need a photographer who can ask good questions…
I need a photographer who can simplify complexity …
I need a photographer whose producer can, at any given time quantify (in terms of time and money) what the inevitable changes and additions mean…
A photographer who is always thinking of the most efficient way to solve any problem and is able to articulate it from that perspective…

But perhaps most importantly, I need a photographer who can hold the idea that we brought to them – the one the creatives have spent the last few months and weekends developing, presenting, refining, presenting, selling, testing, presenting, resuscitating, presenting, refining and reselling…  A photographer who can hold it like a torch, amidst all the chaos and needs, in their unique style; the reason we came to them.

more (here).

Fiunally, Stephen Mayes CEO of VII Photo talks about the many business models being tested now:

But there’s a hugely expanded appetite for photography and with this comes new opportunities; the greatest obstacles to commercial expansion are the limits of our own imaginations and our fear of uncertainty. I see more and more brilliant business innovations, often sparked by young entrepreneurs with low overheads and little to lose.  Some of them are experiencing short-term success, some are not and it’s still too soon to judge which will sustain as the world moves forward.

Right now we’re experiencing the best of times and the worst of times.  There will be winners, some by chance and some by vision and sheer hard work, but there will be no rewards for the faint of heart.  We can’t step backwards, only forwards, even if it means letting go of some dearly held ways of thinking.

More (here).

thx, Peter.

The Daily Edit – Thursday
9.20.12


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T Magazine

Creative Director: David Sebbah
Photography Director: Andrew Gold
Senior Art Director: Aurelie Pellissier
Art Director: Natalie Do
Photography Editors: Jamie Bradley Sims, Rory Walsh-Miller

Photographer: Peter Lindbergh

Note: Content for The Daily Edit is found on the newsstands. Submissions are not accepted

What Happens When Photography Becomes A Commodity?

I believe much of photography is already a commodity and I plan to speak about it during the ASMP Symposium next Thursday the 27th in New York at the Times Center. The topic for the event (more details here) is “Sustainable Business Models: Issues and Trends Facing Visual Artists” which is a topic I’ve been thinking and writing about since I started this blog. the ASMP goes on to say “the rules of the game have changed and it’s no longer business as usual in today’s crowded visual arts marketplace” which to me leads to an obvious conclusion: photography is a commodity.

Commodification is a scary thought. It means you are competing on price and racing to the bottom.

Ok, so that’s the bad news. But, there’s an upside. Before we get to that, let’s destroy this cliché that I hear all the time how “photographers brought it on”, because they didn’t do something to prevent it. All the bitching and whining about weak willed photographers who wont hold the line and clients who wont pay the fees. Commodification is a natural market process. You cannot stop this.

To see the upside you need to take a more nuanced view of photography. You need to consider photography services a value chain and the act of taking a picture, what I like to call being a “camera operator”, as one part of this value chain. You also need to understand that commodification occurs when the improvements to a product overshoot the needs of the client. Better equipment and techniques matter little to the majority of clients. There will always be exceptions, but sadly, it seems we are all past the point of good enough (even if in some parts of the industry good enough is distirbingly low). Nevertheless, don’t dwell on it. Technology that blew your mind ten years ago is now completely commodified. It can’t be stopped.

The upside is that if you have commodification, somewhere else in the value chain a reciprocal process of de-commoditization is at work. In the book I’m reading now (The Innovator’s Solution) author Clayton M. Christensen goes on to say that “commoditization destroys a company’s ability to capture profits by undermining differentiability, de-commoditization affords opportunities to create and capture potentially enormous wealth.”

You just have to find the spot in the value chain where performance is not yet good enough, where you can differentiate yourself by being better than the others. Exciting, right?

I have lots of thoughts on this that I will get into during the symposium but here’s one simple observation.

Not too long ago your personality mattered little in photography. You could be the most abhorrent dick-wad and land all the work you wanted if your photography was awesome. I see plenty of evidence now that this is not longer possible. An art director I sat on a panel with even said “the top 5 photographers for a car shoot are all qualified to do the job. it comes down to personality as to who will get the job” Personality is one tiny part of the value chain, but it’s now more important than the photography. That’s astounding.

Sad if you enjoy operating cameras, but very exciting if you enjoy the entire value chain of photography services. My favorite photographers to work with have always been the creative problem solvers. Now I can clearly see the de-commodization at work.

Slowly being won over by the consistent craftsmanship

I think there is a largely silent body of viewers who react to Adams’ work with much less enthusiasm, finding it often ugly, underwhelming, and a bit boring. …I found his images to be like parsnips or kale – things I was supposed to like, that were obviously good for me, but which in all honesty, I found somewhat less than entirely tasty. Over the years, and with a growing shelf full of Adams’ eloquent books in our library, I have gradually moved closer to the supporters point of view, slowly being won over by the consistent craftsmanship, elegance, thoughtfulness, and quiet beauty in even the most distressing and damaged of his photographs.

via DLK COLLECTION: Robert Adams, The Place We Live @Yale.

The Daily Edit – Wednesday
9.19.12

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Bike

Photo Editor: David Reddick
Art Director: Shaun N. Bernadou 

Photographer: Bruno Long

Note: Content for The Daily Edit is found on the newsstands. Submissions are not accepted

100 Most influential photographers of all time

I love a list of photographers like this. Not because I think there could ever be a definitive list of 100 photographers that most people agree on, but because everyone should have their own list. And everyone should spend time studying the masters. All of my favorite working photographers have the influence of the masters in their pictures.

For anyone who loves serious photography, we live in an incredible time. A quick google search on any of these greats will give you plenty of material to study.

1. Richard Avedon American 1923-2004
2. W. Eugene Smith American 1918-1978
3. Helmut Newton German 1920-2004
4. Irving Penn American 1917- 2009
5. Guy Bourdin French 1928-1991
6. Henri Cartier-Bresson French 1908-2004
7. Diane Arbus American 1923-1971
8.Elliott Erwitt French 1928-
9. Walker Evans American 1903-1975
10. Martin Parr British 1952-
11. Juergen Teller German 1964-
12. Nick Knight British 1958-
13. David Bailey British 1938-
14. Cindy Sherman American 1954-
15. Andreas Gursky German 1955-
16. Edward Weston American 1886-1958
17. Garry Winogrand American 1928-1984
18. Bruce Weber American 1946-
19. Man Ray American 1890-1976
20. Paolo Roversi Italian 1947-
21. Herb Ritts American 1952-2002
22. Annie Leibovitz American 1949-
23. Ansel Adams American 1902-1984
24. David LaChapelle American 1963-
25. William Klein American 1928-
26. Bill Brandt German 1904-1983
27. Ralph Gibson American 1939-
28. Stephen Shore American 1947-
29. Robert Frank Swiss 1924-
30. Andre Kertesz Hungarian 1894-1985
31. Chuck Close American 1940-
32. Robert Mapplethorpe American 1946-1989
33. Steven Meisel American 1954-
34. Peter Lindbergh German 1944-
35. August Sander German 1876-1964
36. Nan Goldin American 1953-
37. Weegee Austrian 1899-1968
38. Don McCullin British 1935-
39. Slim Aarons American 1916-2006
40. William Eggleston American 1939-
41. Joel-Peter WitkinAmerican 1939-
42. Anton Corbijn Dutch 1955-
43. Brassai French 1899-1984
44. Erwin Blumenfeld German 1897-1969
45.Duane Michals American 1932-
46. Mario Testino Peruvian 1954-
47. Mary Ellen Mark American 1940-
48. Larry Clark American 1943-
49. Mert & Marcus Turkish and British 1971-
50. Corinne Day British 1965-

The rest can be found here: http://www.professionalphotographer.co.uk

The Daily Edit – Tuesday
9.18.12

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New York Magazine

Design Director: Thomas Alberty
Photography Director: Jody Quon

Photographer: Miller Mobley

Note: Content for The Daily Edit is found on the newsstands. Submissions are not accepted

For me, the essence of photography is to share

Curators of festivals are all working for the cultural industry, and as an industry they’re obsessed with being the first to show someone’s work. It’s the competitive spirit applied to culture. For me, the essence of photography is to share. This is why it’s so popular and so democratic.

I can understand the cultural industry point of view. You care about how many people will come see your show. I used to have this conversation with gallerist friends: How do you legitimize photography? They would say: You have a limited edition of three prints, and one artist’s proof. But to me this is not the real essence of photography.

via Reaching Beyond the Photo Ghetto.