The Unique Work Made for Hire Relationship in California

Many clients think that they own the copyrights to the photos when they hire a photographer. But, in the United States, if the photographer is not the client’s employee (a w2 employee instead of a w9 independent contractor), the photographer owns the copyrights unless the photographer first agreed in writing and the work falls into one of 9 statutory categories.

Circular 9 from the U. S. Copyright Office explains: a work made for hire (WMFH) is ”a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.” The Circular emphasizes that when the work is created by an independent contractor, both parts must be satisfied–that is, the agreement must be in writing AND the work must fit one of those 9 categories. See also 17 USC 101.

On the other hand, if photos are taken by an employee within the scope of employment, then the photos are a WMFH and the employer is both the “author” and owner of the copyrights.

More companies now insist that they own the copyrights to avoid future infringement claims or licensing expenses, which can be a disadvantage to shooting WMFH photos.

However, in California, Labor Code Section 3351.5(c) provides:

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.

Likewise, California Unemployment Insurance Code Sections 686 and 621(d) provide 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.

Therefore, you technically are an employee of any company that hires you to take photos pursuant to a WMFH agreement. Fortunately, the company then must provide workers’ compensation insurance to cover you if you get hurt on the job.

Because California companies have additional responsibilities when you’re an employee (such as payroll taxes and mandatory reporting to the state), they likely will try to avoid the traditional WMFH agreement by asking you to later transfer the copyrights or allowing you to keep some of the rights.

Whatever the agreement, be sure to review it closely so that you understand your rights.

 

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Copyright Office Launches Blog

Today the U.S. Copyright Office launched its new blog, Copyright: Creativity at Work. The blog supports the Office’s 2016–20 strategic plan of sharing Office activities and issues of public interest through expanded social media. Blog posts will feature such topics as Office news, registration practice updates, law and policy developments, copyright basics, and copyright lore. In the inaugural post, Acting Register of Copyrights Karyn Temple Claggett reintroduces the people and the work of the Copyright Office. Subscribe to Copyright: Creativity at Work here.

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Copyright Office Proposes Amending Regulations to Address Disruption of Copyright Office Electronic Systems

The U.S. Copyright Office is proposing to amend its regulations to address the effect of a disruption or suspension of any Office electronic system on the Office’s receipt of applications, fees, deposits, or other materials.  The amended regulations specify how the Office will assign effective dates of receipt to materials attempted to be submitted during a disruption or suspension of an Office electronic system.  In addition, the proposed rule specifies how the Office will assign effective dates of receipt when a specific submission is lost in the absence of a declaration of disruption, as might occur during the security screening procedures used for mail that is delivered to the Office.

The Office seeks public comments on the proposed regulations that will be considered in promulgating a final rule.

The proposed regulations and instructions on how to submit a comment are available here. Written comments must be received no later than April 3, 2017, at 11:59 p.m. Eastern time.

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Copyright Office Extends Comment Period for Moral Rights Study

The U.S. Copyright Office has published a Federal Register notice extending the deadlines for public comment in connection with the Office’s study on the moral rights of attribution and integrity.  Public comments are now due no later than 11:59 p.m. Eastern time on March 30, 2017, and reply comments are now due no later than 11:59 p.m. Eastern time on May 15, 2017.  Additional information, including instructions on how to submit a comment, is available here.

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Copyright Office Launches Updated Website

The U.S. Copyright Office has launched its updated website, www.copyright.gov. The website has been redesigned to be more organized, more responsive, and easier to digest. It now features a new header with global navigation and search, and expanded width in all sections to maximize screen usage. Several individual pages have been consolidated for improved navigation. A new page, History and Education, includes a wealth of information such as the History of Copyright Law, Past Reports and Publications, and Past Announcements.

Looks good!

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Sierra Trading Post’s Photo Contest is No Bargain

Sierra Trading Post (STP) is a great place to pick up some bargains on outdoor goods. While you have the chance to win a $200 STP Gift Card from its photo contest, just by entering means that you may get less than you bargained for.

Specifically, when you enter STP’s photo contest, you agree to the Terms and Conditions, which state in part (emphasis added):

ENTRANT’S GRANT OF RIGHTS: By participating in the Promotion, each entrant irrevocably grants Sponsor and its agents and successors and assigns a non-exclusive, unlimited, worldwide, perpetual, royalty free, transferable license and right (but not the obligation) to reproduce, publicly perform, distribute, exploit, publicly display, and otherwise use the Submission in any way, for any reason, and in any and all media (including but not limited to the Contest Site), without limitation, and without further notice, consent or consideration to the entrant. Without in any way limiting the foregoing, Sponsor shall have the right, in its sole discretion, to modify and make derivative works of the Submission for any purpose which Sponsor deems necessary or desirable, and each entrant irrevocably waives any and all so-called moral rights they may have therein. Sponsor shall have the right to freely sublicense its rights hereunder, in whole or in part, to any person or entity. Sponsor shall retain the rights granted in each Submission even if the Submission is disqualified or fails to meet the Submission Requirements.

There’s not much that STP can’t do with your photo submission. At least you keep you copyright and you’re not restricted with using it. Just seems that STP is getting the benefit of the bargain here!

Hat tip to Mike Calabro.

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Photo Attorney Blog Celebrates TWELVE YEARS!

Today is the 12th Anniversary of the Photo Attorney® blog!

Thank you for your continued support! 

This blog is full of helpful information for the photographer’s legal needs. With hundreds of blog entries on a variety of legal subjects that affect photographers, the best way to find information is to use the search tool located at the top right hand corner of the page or check the Posts by Topic at the bottom of the right hand column. Subscribe to the RSS feed to easily get new posts. Also follow Photo Attorney on Twitter for other links and quick updates on the law. Learn even more with the Photographer’s Legal Guide and get the Photo Attorney® photography forms to help your business.

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Final Rule Adopted to Remove Personally Identifiable Information from Registration Records

The U.S. Copyright Office issued a final rule to allow authors and claimants to replace in or remove from the Office’s online registration catalog personally identifiable information (PII). This rule allows authors, claimants, or their authorized representatives to pay a fee and request the removal of certain PII requested by the Office and collected on registration applications, such as names, home addresses, or personal phone numbers. The PII will be removed from the Office’s Internet-accessible public catalog but retained in the Office’s offline records as required by law. The rule also codifies an existing practice that removes extraneous PII free of charge, such as driver’s license numbers, social security numbers, banking information, and credit card information, whether by the Office’s own volition or upon request by authors, claimants, or their authorized representatives.

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Photo Attorney® on Twitter for More Law for Photographers

Lots of information is available these days, thanks to the world wide web. But sifting through it all can be a challenge.

In addition to the information available on this blog, you can get more on the law for photographers by following Photo Attorney® on Twitter. There, you will find quick links to great resources. (Note that ethical and time restrictions prevents Twitter conversations.)

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