Photo Attorney

Apr 28, 2008

Q&A - Is Your Photography a "Work for Hire?"

Q. I currently am a "freelance" photographer (without pay) with a newspaper. I have not signed anything with the newspaper. Am I subject to work-for-hire provisions?

A. When you are not an employee of the organization, the agreement for a "work for hire" scenario MUST be in writing for the copyright to belong to the hiring company. See 17 USC 101.

Sometimes, however, there is a dispute as to whether you are an "employee" of a company. The case that is most cited to determine whether you are an employee is CCNV v. Reid. 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.

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.