CanadaHow do I figure out if a former employer owns rights to my photos?Hello,
I used to work (1.5 years) as a conservation educator for a nonprofit organization which operated an outdoor education program. My job responsibilities were roughly outlined in a contract which never ever ever mentioned creativity of any sort, intellectual property rights, etc., and certainly not photography. I was never presented with an employee handbook, so I have no idea if there are internal policies that relate to this question.
Now, a few years later, I am looking at some really great images I took back then, and wondering how to go about verifying who has the rights to those images. I was not compensated for them in any way, they did not constitute a significant, essential, or expected part of my work, and had I never taken a single photo, I would still have received positive evaluations of my work. I don't even want to ripple the water over there until I have a good idea of how to proceed.
The organization is private, has a multi-million dollar budget, and has used these photos for outreach, print and web publications, recruitment (program participants), and so on. All the things a conservation/education nonprofit would do with great photos. They have plenty of money, make a lot of print and video publications, etc., so they are definitely well-informed about copyrights.
At a minimum, I'd like to use the images in my portfolio. Ideally, if I do legally possess the copyrights, I would consider approaching them about licensing fees. For now, though, I just want to figure out who possesses the copyrights.
I chime in periodically on legal issues: I'm not a lawyer. My advice is, as always, check with a lawyer. Ideally, I'd check with a lawyer who is versed both in intellectual property law and employment law in the jurisdiction of your former employer. A copy of your employment contract would probably help immensely.
Hi there!
I see you are in Canada. So...don't forget that until a few months ago, anyone who commissioned the photos owned the copyright unless you had a contract specifically assigning the copyright to you.
So, the question is: who commissioned the images? Did you take them on your own time just to see what you would get and then, happening to show them to management, they liked them enough to ask you to use them? Or, did you take them during the course of doing your job? I think it would be interesting to know how your employer got a hold of the images and started using them on their marketing pieces - it might tell a lot about under what circumstances they were created and how your former employer may view their ownership and usage.
Hello "kweiler" -
Thank you for your comment. The photos in question were taken in Montana (USA), so the Canadian copyright nuances shouldn't be a factor. However, thank you for mentioning that.
The point, I guess, is that I was NOT commissioned to take the photos. I took them "on my own time" as I went about my assigned job responsibilities. At the time, I didn't know about licensing, etc., so wasn't thinking ahead. I downloaded the photos to a hard drive shared by myself and the other two employees.
When the photos made their way into initial marketing pieces, it was because I drafted them. Again, this was not a clearly stated job responsibility. It fell into the "we need someone to do this and you're creative, would you do it when you're not working on other things?" category.
It keeps complicated...still it appears to me that if your employer paid for your trip and so "enabled" you to take the pictures at this certain location *and* you used these pictures for company stuff too, I would argue that your employer has more rights to the pictures then you. Just because this is not covered in detail in your contract/work description, it doesn't mean its not implied. You really should ask a local lawyer, we can all just guess because we really don't have enough information.
You say you took them on your own time as you went about your assigned job responsibilities...what does that mean? Were you "on the clock" and took some time to take images along the way? If, during that time, you were being paid for your services and you took images, you were "at work". At best, you were completing "other duties as assigned"...at worse, you were stealing time from the company engaging in personal tasks that were not related to your job. (Not judging you, just telling you how this could be perceived from your employer's perspective.)
If, on the other hand, you had completed your day's work, was out on the town on your own and took images, you might have more of an argument for owning the images.
I'm not a lawyer, (insert usual caveat here) and you didn't describe your job in detail so.....
Whether your former employer is a non-profit and how much money they have or their knowledge of copyright laws is completely irrelevant. What does matter is: you were fully employed by them (you were not working for somebody else as well) they paid taxes on your behalf and supplied benefits such as paid holidays, health insurance etc., then you were an employee. You were compensated by them in the form of a salary. Even if photography was not clearly written in to your job description, the great majority of companies have the phrase ".... and other duties as deemed necessary..." in their contracts. As employers they do not have to spell out intellectual property rights unless they choose to. When you took those pictures, you were given access to the property, access to the events as an employee - you had special access because you worked for them - where as I probably would not have had the same access. They had the authority to allow or disallow you to take those images.
I am fairly certain you could use the images in your portfolio to promote yourself but I do not believe you own the copyrights and going back to them and asking for licensing fees would probably prove to be unsuccessful.
Hello Jim,
Thank you for your detailed reply. I appreciate the point about special access - I had not thought of that. Also, the point about them being an NGO was largely related to the fact that what I did wasn't commercial. I don't know if that ever factors into decisions like this.
My job was to teach children about the outdoors through hands-on experience (hikes, facilitated activities, etc.) on the property owned by the org. I was also responsible for supporting the director when summer camps (for kids) and professional devleopment workshops were held (for teachers). I was responsible for lesson planning, a bit of curriculum development but not much, and that was about it. I'm sure the "other tasks as necessary" clause was in the contract.
I'm actually thinking about approaching the director with a proposal re retaining copyrights (no fees, another good point), and just seeing what she says.. We're still on excellent terms. I wanted to know what I was dealing with first, though.
Thank you again.
I'm no expert in IP law but if you took the photos and you didn't sign any contract that expressly gave away the copyright then I believe you own the copyright to those images.
Hello Erich,
That's exactly the question I'm trying to answer. There's this whole "work for hire" issue, though. What I'm trying to parse out is where the boundaries are. Most of the info I've found about work for hire contracts and employer ownership of creative content seems to be directly related to doing creative work for the employer as part of one's job description.
That's why I'm wondering what kind of foundation I have to stand on, if I approach the former employer about an agreement that I retain copyrights.
Thank you for your comment!
By the way, I'm currently in Canada, but this situation is relevant to the U.S., Montana specifically.
commented:
February 22, 2013
fruitrootleaf
Semi-Professional