# Copyright questions



## bobthefish51 (Nov 27, 2010)

I have been working for a Veterinary hospital, my technical role is a customer service rep.  However, I have been taking pictures for the hospital; shooting events, surgeries, and such.  These images are used on our website, monthly gazettes, and other printings.  My biggest issue is besides my hourly pay as a CSR I have not recieved any compensation or recognization for my shots.

So, I have two questions.  Are the breaking any laws by using my images without credit (they are not copyrighted)? 

And, since I am shooting for the hospital do I have legal rights to these pictures for my own uses without consent from the hospital?


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## c.cloudwalker (Nov 27, 2010)

You are shooting as an employee of the hospital so the hospital owns and images and the copyright and you cannot use them for your own purposes.

The second possibility is that you are shooting those while off the clock. In this case, they would be considered yours and you could ask for remuneration for the photo work along with credit in the printed material.

Either way, as I've said often, being an eager beaver at work rarely pays off. You should have clarified the situation before the first shot.


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## KmH (Nov 27, 2010)

bobthefish51 said:


> I have been working for a Veterinary hospital, my technical role is a customer service rep. However, I have been taking pictures for the hospital; shooting events, surgeries, and such. These images are used on our website, monthly gazettes, and other printings. My biggest issue is besides my hourly pay as a CSR I have not recieved any compensation or recognization for my shots.
> 
> So, I have two questions. Are the breaking any laws by using my images without credit (they are not copyrighted)?
> 
> And, since I am shooting for the hospital do I have legal rights to these pictures for my own uses without consent from the hospital?


Yes, the images were copyrighted, in your name, the moment they were written to the camera's memory card.

The web site is their's, not 'ours'.

Unless you have signed a 'work-for-hire' agreement, they are violating your copyright.

However, copyright law is federal law. Copyright infringement actions are only heard in federal court. If your copyrights have not been registered with the US Copyright office before filing an action in federal court, your action will probably be dismissed out of hand for a lack of subject matter jurisdiction.

So, *before you say anything to them* you need to read: Help! I've Been Infringed! | Photo Attorney

And you need to add www.copyright.gov to your favorites list and start learning about (work-made-for-hire) http://www.copyright.gov/circs/circ09.pdf and copyright in general U.S. Copyright Office - Frequently Asked Questions.

You also need to be familiar with the 'Fair Use' doctrine: U.S. Copyright Office - Fair Use

I highly recommend you hire an attorney if you decide to persue any legal action.

You also need to be aware you will be putting your job at risk by bringing this to your employeers attention at such a late date.


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## bobthefish51 (Nov 28, 2010)

Thank you Keith.  I will read up on the info you gave me.  You seem to be very knowledgeable about all these.  I read of copyright questions you posted on.


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## kundalini (Nov 28, 2010)

You may want to have a look at this interview with copyright attorney Ed Greenberg.

Bonus: Interview with Copyright Attorney Ed Greenberg | Photoshop User TV


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## skieur (Nov 28, 2010)

c.cloudwalker said:


> You are shooting as an employee of the hospital so the hospital owns and images and the copyright and you cannot use them for your own purposes.
> 
> The second possibility is that you are shooting those while off the clock. In this case, they would be considered yours and you could ask for remuneration for the photo work along with credit in the printed material.
> 
> Either way, as I've said often, being an eager beaver at work rarely pays off. You should have clarified the situation before the first shot.


 
Cloud is incorrect.  It is irrelevant whether you are an employee of the hospital or not, what matters in LAW: American and Canadian for that matter is whether the nature of your job requires you to take photos.  Is taking photos part of your job description?

If it is NOT part of your job description then YOU OWN the copyright to all photos that you have taken.  See Photography and the Law at the top of this website which I wrote to try and clarify this and other legal issues.

skieur


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## orljustin (Nov 29, 2010)

You may hold copyright still, but that doesn't mean you didn't give permission for them to use the images without credit and compensation.

"Hey fishbob, there's a surgery going on in room 8.  Can you take our camera and go shoot it so we can put some examples on our web site?"
"Sure thing Mr. Boss.  Not a problem."

Smarter thing next time (?).
"Hey fishbob, there's a surgery going on in room 8.  Can you take our  camera and go shoot it so we can put some examples on our web site?"
"Sorry Mr. Boss, that's not in my job description.  If you want me to do that, you'll need to rewrite my job description with an included raise, or sign off on this legal document with a one time bonus."
"Bob, you're fired."


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## skieur (Nov 29, 2010)

orljustin said:


> You may hold copyright still, but that doesn't mean you didn't give permission for them to use the images without credit and compensation.
> 
> "Hey fishbob, there's a surgery going on in room 8. Can you take our camera and go shoot it so we can put some examples on our web site?"
> "Sure thing Mr. Boss. Not a problem."
> ...


 
Smarter thing next time.
"Hey fishbob, there's a surgery going on in room 8. Can you take our camera and go shoot it so we can put some examples on our web site?"
"Well, to do that, I will need from you, a Nikon D3, auxilliary flash, lights and some stands." You realize, of course that I will also need release forms (where do you keep them?) for the patient, doctor, and staff to sign, before I even go into room 8."

"Bob, never mind."

skieur


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## c.cloudwalker (Nov 29, 2010)

skieur said:


> Cloud is incorrect.



Really? Here it is from the copyright office:

"To assist in understanding the application of this law, the Copyright Office has prepared a circular.

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."


And the way we dispense justice in the US (and from what I've seen, it's no better in Canada,) good luck getting a judgement in your favor without the "agreement in writing."

As to the job description, you must be kidding. Most job descriptions are open ended quite on purpose.

Anyway, if you watched the interview that Kundalini gave us a link to, you would realize how much legal advice given on this forum is wrong. Not only that but he says something that I can't help but agree with: "DON'T ask a photographer for legal advice."


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## KmH (Nov 29, 2010)

c.cloudwalker said:


> Really? Here it is from the copyright office:
> 
> "To assist in understanding the application of this law, the Copyright Office has prepared a circular.
> 
> 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 very helpful if you post a link to your source document.


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## RDBradish (Nov 29, 2010)

While not a lawyer, and in no way offering legal advice, I would like to point out that many employers include wording in their contract, something to the effect of "and other duties as assigned".

I have heard of case law, though cannot cite any, that states something to the effect of, if an employer provides an opportunity to do something that you would not normally be able to do, then that function is one of your employment. 

So, while you may never have been hired as a photographer, the employer may be protected by your willingness to do it along with the "other duties as assigned" clause. Further, because the employer may have provided you with access you might not have been granted as a non-employee, it could be perceived as work for hire, with rights and priviledges belonging to both.

I might approach it differently. "Hey Boss, since I took those picture, would you mind if I copyright them to keep anyone from unauthorized use?".


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## Chamelion 6 (Nov 29, 2010)

c.cloudwalker said:


> skieur said:
> 
> 
> > Cloud is incorrect.
> ...


 

Having already dealt with this issue personally... If you shot the pictures on their property and on their time and accepted pay for that time unconditionally then the product of your work during that time belongs to them unless you have something in writing that says otherwise.

If you spend your paid employee time making donuts, they own the donuts, if you spend your time writing ad copy, they own the copy. It's going to be on your shoulders to prove that you were contracted by them when you don't have a contract reserving your right to retain the rights... You were acting as an employee.

Just wanted to add...  As a photojournalism major and staff photographer for the school newspaper, I used my equipment...  Everything I shot was ther property of the school to use or do with what they wanted and it was at their discression whether I got any specific photo credits besides a listing as "photographer" in the staff box.  Before that I shot headshots and groupshots for my company's news letter.  Again, shooting on their time everything I shot for them was theirs.  I never found my self contesting any of this as I understood what I was getting into prior to doing it.  But I shot company and school stuff on separate rolls of film so there could be no mistake or dispute about which images were mine and which were theirs.


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## KmH (Nov 29, 2010)

See 17 USC 101

See also: http://www.copyright.gov/circs/circ09.pdf



> ..._Important: _The term &#8220;employee&#8221; here is not really the same as the common understanding of the term. For copyright purposes, it means an employee under the general common law of agency...


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## skieur (Nov 29, 2010)

c.cloudwalker said:


> skieur said:
> 
> 
> > Cloud is incorrect.
> ...


 
There is the famous case in New York, often quoted as a precident where a travelling salesman on company time took a very top quality newsphoto which was worth a lot of money. The judge ruled that a salesman was NOT hired to take photos, so therefore it was HIS photo from the point of view of rights and remuneration.

In Canada, one of two things happen. Those employees who might be involved with taking photos have the rights issue written into their employee contracts if they are administrators. If they are on a lower level, then they are paid extra for photography that is not part of their job description.

Realize too that other duties as defined by the boss, presupposes that the boss has supplied the employee with the equipment and resources necessary to do the job. If the employee is an amateur photographer then he/she can define what is necessary to do the job. Moreover I seriously doubt that the boss has the required release forms necessary for some types of photography involving people in a hospital.

skieur


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## skieur (Nov 29, 2010)

The point is that if you start to do part-time shooting for a company that is not part of your job function or description, then you are creating your own problems.

If your equipment is damaged or stolen during these ventures, then it is NOT covered by your home insurance or camera insurance that does not mention business use and a higher premium. You are therefore risking your equipment. Your employer will NOT cover it, since they would say that it is not part of your job. I should point out that this has happened and it is standard employer practice. Basic law is that the employer by the way must provide the employee with the tools (in this case camera and lighting equipment) to do the required job or task.

If photography is not specified as your job role or description, then you alone are responsible for any liability if for example someone tripped over your tripod or burnt themselves on a light etc. Those that don't like law suits would really be in trouble in this situation.

Moreover, if you MAKE photography part of your job description, then you are in effect GIVING the rights to all your shots to your employer, on his terms, so don't complain afterwards.

So there may be a risk of your job by asserting your rights, if you do not do so carefully, but there are other risks to your equipment and liability, if you don't.

skieur


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## skieur (Nov 29, 2010)

I notice in the link by Keith, the necesssity of a written agreement to be a work for hire and the necessity of the employer to provide the tools necessary to do the job.

Neither is usually the case, if an employee is simply asked to take photos on short notice by a boss.

skieur


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## Chamelion 6 (Nov 29, 2010)

I've not really read the link in detail, cause I'm on a deadline for a school project, but nothing I've read defining employee or employee for hire changes anything I said.

He was an employee on company time.
He accepted pay for the work.
He has no existing contract outlining him as contract for hire.
He has no contract stipulating that he would retain rights to the images.
He willingly accepted the assignment under all the terms above.
He delivered the product to the company under the above conditions.

On his side he has, he shot the images on his camera.

If copyright laws were that generous there would be very little production going on.

Now, if he was on company time, shot an image then tried to market it or claim copyright and his employer had no other connection to that image, THEN it's a different ballgame.  But this is not even remotely related to that kind of scenario.

On the other hand, none of us are copyright lawyers.  If it's that burning an issue I would consult a lawyer and really take heart at what the odds of winning a case like this is.


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## KmH (Nov 29, 2010)

Without registered copyrights, the issue is moot.

Actually, the copyright laws are that generous. Copyright is a legal monopoly.

The key would be, which circuit court an action needing ajudication of a 'work-for-hire' issue was filed in.


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## Chamelion 6 (Nov 29, 2010)

KmH said:


> Without registered copyrights, the issue is moot.
> 
> Actually, the copyright laws are that generous. Copyright is a legal monopoly.
> 
> The key would be, which circuit court an action needing ajudication of a 'work-for-hire' issue was filed in.


 
I'll be the first to admit I'm far from an expert and could very well be wrong. My understanding of the law, as applied, came from my journalism courses and that was back in the 80's. 

I will say that if it were me personally, I'd probably just suck up the loss as I just think this is an up hill battle. He could probably get the shots taken down if he raises enough of an issue over it because I doubt the company wants to deal with the issue either. But I'd be concerned about my job... I'm just not sure it'd be worth it unless those are some really marketable shots.  I still think any decent lawyer could take the points I mentioned and present this as though it was understood from the beginning what was being asked.  The burden of proof would turn the other way.  I understand the images have been up for some time with no complaint.  That's going to really be a big issue in a case like this.

I would, however, make my position known if ever asked to shoot again.


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## skieur (Nov 30, 2010)

KmH said:


> Without registered copyrights, the issue is moot.
> 
> Actually, the copyright laws are that generous. Copyright is a legal monopoly.
> 
> The key would be, which circuit court an action needing ajudication of a 'work-for-hire' issue was filed in.


 
In the US, copyright exists from the creation of the work, whether it is registered or not. Registration is of course important if there is a question related to who took the original photo, but that is not the case here.
 I should also point out that the photographer is the first owner of copyright, so baring a written agreement to the contrary as per Keith's link, or the employer providing the equipment and releases to do the task and it being part of the employees job, then the employee retains the copyright whether he was being paid at the time or not by the company.

skieur


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## Chamelion 6 (Nov 30, 2010)

skieur said:


> KmH said:
> 
> 
> > Without registered copyrights, the issue is moot.
> ...


 
The question is not about whether the work is under copyright, it is.  The question is who owns the copyright.  

An employer payes and employee to produce something on the job.  The employer owns the right to that product.  When I was a draftsman I owned all my own equipment, the company still owned the copyright to the maps I produced.  When shooting for the school and the school newspaper I shot with my own equipment, the negatives and prints were the property of the school...

That applies to copy and pretty much everything unless the employee is under contract and the contract stipulates they retain creative rights.  As a financial representative representative the clients I brought in and serviced were clients of my employer and I functioned as their representative, even though I did all the work.

As an employee you are not working for yourself, you are functioning as a representative for the employer and the fruit of your labor while on their dollar belongs to them.

When he agreed to take pictures for them on their dollar that became part of his job.  That's what this is all coming down to, was he working for himself and contracting to provide photos or was he working for them and his job was to take pictures.  That fine line makes all the difference in the world.  See my previous points, I don't think it's going to be too difficult for a lawyer to demonstrate he was funtcioning as an employee...


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## skieur (Nov 30, 2010)

Chamelion 6 said:


> skieur said:
> 
> 
> > KmH said:
> ...


 
You misread the quote you used from me. As I indicated the photographer owns first copyright. If he has signed *no* agreement to the contrary then he retains his ownership of the copyright.

You also missed my statement that he further retains his ownership of copyright if his job description does NOT require him to take photos and by that I mean his original interview and original posting of job requirements. That is what a judge will look at.

You further missed my point and as it applies to your example. As a draftsman your employer may own the rights to your drafting work because that is your job. Your employer does NOT own any rights to your photography or video work, since that is NOT part of your job.
I believe the OP said he was not hired as a photographer when he was asked to take photos. When you were shooting for the school newspaper, you probably were not even paid, so the rights to the photos belonged to you, not the school.

Some people here have it backwards. The photographer does NOT have to prove that he owns copyright to his photos. If he took the pictures, then he has the copyright. The company has to prove that he gave up his copyright to his employer but that is only true if he was hired AS A PHOTOGRAPHER or signed an agreement specifically giving copyright to his employer.

There is also an insurance issue as well. Most if not all companies have liability insurance but that covers employees working within their job roles and assumes competency of the employee in what they were hired to do. Moreover the insurance covers damage and theft to company owned equipment only. So a staff photographer would likely be covered if a camera was dropped or knocked off a table etc. or a light on a stand fell and hit another employee. A consultant or assistant manager however using his own camera and equipment would NOT be covered because that is NOT part of his job. This is why companies should hire pro photographers on staff or on contract, and this is why amateur photographers in other staff positions should NOT consent to risk liability and damage/theft of their personal equipment to do photography that is not part of their job.

skieur


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## Chamelion 6 (Nov 30, 2010)

skieur said:


> Chamelion 6 said:
> 
> 
> > skieur said:
> ...


 
I understood your post, I'm disagreeing with your interpretation.

When he was asked to take pictures, or volunteered, either way, that became part of his job uinless he agreed to do it after hours on his own time. During my time at the mapping company I was hired to draft maps, but I was called on to do linework, operate the litho cameras, transport maps to other agencies (in my own car), and a host of other things that was not part of the inital job description. It became my job when I agreed to do it. 

I've heard this argument before, generally by people wanting rights to copy they produced while working for a company, powerpoints and such they produced on their own that other employees started using. I've never heard of anyone managing to walk out with that kind of stuff when they quit. Not once. Remember he didn't shoot these pictures for his scrap book and the company asked to use them after the fact. He was asked to shoot them for the company and he agreed. He did the work on their time and accepted pay for that time. He has no contract, he's an employee.

Job decriptions are not engraved in stone in most places and once you agree to a task, that task becomes part of the job... Unless you have a union to back you up... Then maybe. Most job descriptions leave loopholes to allow for expansion and change. No company I've ever worked for issued a new job description when something new came up, they just said, "Now you do this..." Your options are to do it, quit, or get fired. 

A good example... Writers, hired as employees to write copy, that submit photos with their stories don't retain the rights to those photos, those are owned by the press that the writer works for, _unless they specifically retains the rights to them. _And they'd better get it in writing cause if he tries to walk with them, there's probably gonna be a fight over it.  Might they win if they sued?  Possibly.  Is it a slam dunk?  Not by any stretch.  This stuff isn't and never has been black and white.  If you want to protect your rights and your work you need to be actively doing that every time you post something or had something to someone.

George Romero lost the rights to "Night of the Living Dead" because his distributor failed to reserve the rights of the film before distributing it. His name is at the beginning of the film, that he made it is common knowledge, but he has no rights to it. It is part of the public domain.  He's tried many times to regain them but has failed to do so.

I guess the reason I'm jumping up and down is too many people think just because they push a button on their camera you indellibly own it for lifetime, but that's not true and there are too many situations where artists loose their rights to their work because they made that assumption... If you're gonna put your work out there and retaining the rights to it is important to you, then you need to actively retain them. You need to understand when something you do can possibly diminish or revoke your rights to a piece of work. There are a lot of ways you can put your claim at risk. ngerous to just assume that just because you hold an original somewhere that means you own full rights. Just posting an image on certain sites can be taken as giving up full claim on an image.

John Fogerty got sued for plagerizing himself!!! The Beatles woke up and discovered their entire catalogue was owned by someone else. They all thought they owned their stuff too... They were wrong.

Artists need to understand that some actions have legal implications they do not intend. If you wanna make sure it's yours you need to pee all over it twice before anyone even touches it, especially if you're dealing with an employer.


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## skieur (Dec 1, 2010)

From Chamelion 6

When he was asked to take pictures, or volunteered, either way, that became part of his job uinless he agreed to do it after hours on his own time. During my time at the mapping company I was hired to draft maps, but I was called on to do linework, operate the litho cameras, transport maps to other agencies (in my own car), and a host of other things that was not part of the inital job description. It became my job when I agreed to do it. 

I've heard this argument before, generally by people wanting rights to copy they produced while working for a company, powerpoints and such they produced on their own that other employees started using. I've never heard of anyone managing to walk out with that kind of stuff when they quit. Not once. Remember he didn't shoot these pictures for his scrap book and the company asked to use them after the fact. He was asked to shoot them for the company and he agreed. He did the work on their time and accepted pay for that time. He has no contract, he's an employee.

______________________________________________________

The legal interpretation of a work for hire related to photography is that the employee has to be paid specifically for taking pictures.  As a photographer, he would be.  For an employee who is not a photographer, he needs to be paid beyond regular salary for specifically taking photos in order for the company to own the rights to those photos.  Case law and judgements support this interpretation and working for one organization in another function, I was in fact paid extra for taking photos so that they would own the rights to those photos.  Their staff lawyer made sure that the organization complied with copyright laws.

Most people by the way don't walk out with copyrightable work that they did unrelated to their job because they do NOT know their rights and neither do some companies.  Then of course some of those that know their rights are constantly improving their skills anyway and don't concern themselves with past work.

skieur


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## skieur (Dec 1, 2010)

From Chamelion 6:

A good example... Writers, hired as employees to write copy, that submit photos with their stories don't retain the rights to those photos, those are owned by the press that the writer works for, _unless they specifically retains the rights to them. _And they'd better get it in writing cause if he tries to walk with them, there's probably gonna be a fight over it. Might they win if they sued? Possibly. Is it a slam dunk? Not by any stretch. This stuff isn't and never has been black and white. If you want to protect your rights and your work you need to be actively doing that every time you post something or had something to someone.

_______________________________________________________

Having done precisely that, yes I did retain copyright to my photos. As long as the writer has NOT signed any work contract to the contrary and has not agreed to hand over rights to photos, then he retains them. The story is published with the photographer's copyright on or under the photo.  In a book, it may be in a list of copyrights at the back.

skieur


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## skieur (Dec 1, 2010)

I do agree with Chamelion 6 that in essence photographers and other artists do stupid things that diminish or totally negate their rights to their work.

Included in that are photographers who give photos away only to find them sold and published by the person they gave them to, beginning pros who do not use a contract, those that do not read the fine print in photography contests, beginning pros who sign the contract of a client (often a business) rather than presenting their own for the client to sign,
and of course those capable amateurs who agree to shoot photos at work when it is not required by the nature of the job.

skieur


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## c.cloudwalker (Dec 3, 2010)

skieur, I will once more ask what your credentials are because you talk pretty but most of what you say make very little sense...


KmH, my apologies. The word circular was a link. It did not transfer as such but it linked to Circular 9 of the Copyright Office. This circular is, like most laws, or law like thing, open to interpretation. And when things are open to interpretation, it comes down to who has the best lawyer. Get over it.

Interpretation rarely benefits the poor guy like the one who posted this thread.


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## mooney101 (Dec 3, 2010)

I say the best thing is to talk to a lawyer just to see what your options are. I would have to lean towards since you are an employee there then they can use the images if they are paying to shoot them.


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## skieur (Dec 3, 2010)

The American copyright law related to a work for hire indicates that the copyright of the work is owned by the company who hires the person TO CREATE THE WORK.

This is what I have said before in different words.  A draftsman is NOT hired by a company to create any particular PHOTOGRAPHIC WORK.  He is hired TO CREATE THE DRAFTING WORK.  Notice the phrase "THE WORK" above, not any work.

This is why judges have ruled in effect that the company owns the photographic work of those that are hired as photographers.  The company does NOT own the photographic work of those employees that are hired in an OTHER capacity where photography is NOT part of their original job description.

As happened with me, on that occasion I was paid extra and specifically to CREATE THE WORK, that was not part of my job, thus complying with the work for hire section of the copyright law.  The definition by the way is the same in the US as in Canada.

skieur


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## table1349 (Dec 3, 2010)

skieur said:


> The American copyright law related to a work for hire indicates that the copyright of the work is owned by the company who hires the person TO CREATE THE WORK.
> 
> This is what I have said before in different words. A draftsman is NOT hired by a company to create any particular PHOTOGRAPHIC WORK. He is hired TO CREATE THE DRAFTING WORK. Notice the phrase "THE WORK" above, not any work.
> 
> ...


 
No it is not.  We here in the US do not include "eh" at the end of each sentence.  :mrgreen:


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## skieur (Dec 3, 2010)

gryphonslair99 said:


> skieur said:
> 
> 
> > The American copyright law related to a work for hire indicates that the copyright of the work is owned by the company who hires the person TO CREATE THE WORK.
> ...


 
So true, or the "tsu" at the beginning and end of many French sentences from Quebeckers.

skieur


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## skieur (Dec 15, 2010)

mooney101 said:


> I say the best thing is to talk to a lawyer just to see what your options are. I would have to lean towards since you are an employee there then they can use the images if they are paying to shoot them.


 
"if they are paying (you) to shoot them" but NOT if they are paying you to do other work in a different capacity.  BIG DIFFERENCE.

skieur


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