After visiting with members at the Northern Short Course, we realized that many of the same questions are asked repeatedly. We thought it would be helpful to answer some of the most common questions we get from members. Some of the details have been changed slightly to protect the identity of the photographers.
Q: “I’m freelancing but using my client’s equipment. Don’t they own the copyright?”; or “If I’m shooting for my employer but using my own gear, do I own the copyright?”
A: The good news is that this is one of the few things about copyright where we can provide a more clear-cut answer. The default rule is that If you are independent, or freelance, you own the copyright unless you have transferred it away in writing. On the flip side, if you are an employee, that is a de facto work-for-hire situation, and your employer owns the copyright. An employee derives the benefits of employment such as salary, health care, sick days, vacation. Your employer is then considered the “author” of the work and benefits from owning the copyright to the material you produce while on the employer’s time. The only way that this can be altered is through a signed written agreement between the photographer and employer/client. The ownership of the equipment used to take the pictures should have no real impact on the analysis, although if there is a doubt about whether it is an employment situation, ownership of the equipment might be a factor to consider. One variable is that you might be permitted to use company-owned equipment to shoot photos or record images on your own time – in such cases you should also be allowed to retain the copyright. However, some employers forbid staff from using company equipment for any purpose other than to shoot assignments on company time. Once again, these situations should be addressed in writing at the time of hiring.
For more information on whether the photos are yours or your employer’s, see our Work for Hire chart.
Q: “I’m registering the copyright to my photos. Is my work published or unpublished?
A: We have been working for many years to try to get the Copyright Office to ease the burden on photographers trying to answer this question. It’s not as easy as it sounds, and to further complicate things, the legal definition of “published” is not the same as the traditional definition of “published.” That said, U.S. Copyright Law defines “publication” as “the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display constitutes publication. A public performance or display of a work does not of itself constitute publication.” So publication occurs on the date on which copies of the work are first made available to the public. However, per the second part of the definition, distributing your work to a client with permission for the client to further distribute the work could also be determined to be “publication.” Work that has not been distributed in any manner is considered “unpublished” see.
For further information see Circular 1, “Copyright Basics,” section “Publication” see.
Q: “The local police are letting me shoot pictures of crime scenes under certain conditions or if I provide them copies. Is that OK?”
A: A good rule of thumb is this: If you have a legal right to be present, such as on public property — i.e., a sidewalk or park — or on private property with the permission of the owner, then you have the right to photograph and record what you see. No “quid pro quo” is needed — in other words, you don’t have to offer anything in exchange for exercising that right. Police-press relationships are things that don’t happen overnight. And there is a difference between acquiescing to a request — such as giving prints away — in order to build a relationship and feeling like there are conditions attached to your access. If you are there shooting as a journalist and are allowed greater access than other journalists because you are acting in some official capacity for the government agency — police, fire, etc. — it is unethical for you to wear both hats at the same time, as it creates a conflict of interest or gives the appearance of a conflict of interest. We urge you to review NPPA’s Code of Ethics, and also make sure you are in compliance with your employer’s policies if you do these things. All companies do not view these issues in the same way.
If the police or fire department allows a journalist into the interior of private property, both may be treading on shaky ground, and there have been cases where police have later gotten in trouble for allowing journalists onto private property. Journalists can have liability in these situations too. We believe that it crosses an ethical line for a journalist to shoot crime scene photos on behalf of the police.
For further information about legal concerns that arise when police provide access to private property:
‘Live PD’ footage might figure in lawsuit
Ride-alongs may cause legal trouble for the media
Ride-alongs present complex legal, ethical challenges for student reporters
Q: “I’ve been working for years as a contractor, for 40 hours a week, and often more. It’s my only job. Is that OK?”
A: If “working for years as a contractor” means the company or person you were working for only paid you an hourly wage for those 40 hours without providing you with any benefits, overtime or withholding taxes, then that may be violating state and federal labor law as well as IRS regulations. The main reason an employer might misclassify you is to save money. It’s important to consider what outcome you want before you take the next step because of the consequences. There was a recent ruling in California (Dynamex Operations West Inc. v. Superior Court of Los Angeles) that makes it even more likely that a freelancer would be reclassified as an employee in that state, regardless of the number of hours worked. It’s definitely worth talking to a local labor attorney. Remember, however, that if you have retained your copyright and you are reclassified as an employee, your “employer” may become the owner of the copyright.
For more information on Dynamex.
Q: “I’m starting a business where I will be taking pictures for lots of different clients. How much should I charge?”
A: Unfortunately, far too many photographers think they are very successful because they are shooting a lot of assignments but don’t realize that they are just busy losing money. Photographers need to do a realistic assessment of how much it actually costs them to be in business: time, equipment, insurance, gas, etc. The NPPA “Cost of Doing Business Calculator” can help determine that. Once you have a better idea of the costs involved, you can then factor in your talent, creativity and current market rates as well as the scope of the license being negotiated and the value of what you are providing. For example, a client who wants the copyright to a set of images — or your entire take — should be charged far more than a client who is seeking one-time use in a brochure with no online use. That sliding scale can change the amount charged dramatically. A good photographer will work with a client to educate him or her about these things as a value-added benefit. Remember that it is OK to talk to other photographers in your area or elsewhere and ask what they charge, what a particular client is willing to pay and similar questions — your fellow photographers don’t want you to charge too little any more than we do. ■
NPPA CDB Calculator is available at nppa.org/calculator
Got a question for a future column?
If you are an NPPA member, send your question to us or find us at an NPPA event. Email Mickey Osterre-icher at [email protected] or Alicia Calzada at [email protected]