howard r wrote:

the point of my example is that when you give up all rights for the price of limited usage, any scenario is possible. the client owns everything, including the rights to resell the image to a third party. is it likely? no. but is it professionally reasonable to spell out the rights that you are granting for the fee that you are being paid? absolutely.

ask yourself - why did the client present the “buy-out” contract to the op at the last minute? because their company’s legal department got tired of being billed by photographers for additional uses that were not in the original agreement. that should tell you two things right off the bat: #1) that they do end up using the images for other purposes, and #2) that they don’t want to have to pay you a dime for those additional uses!

look at it this way: we get paid for our time, but we should also get paid for the usage. i have no problem getting paid $500 for an actor headshot. that’s a shitload of money for an hour of my time. but i would have a huge problem shooting a national ad campaign for $500 an hour. it’s still the same hourly rate, but the usage takes it to a whole other level.

furthermore - when you explain to your clients that you will have to charge them more for all rights, and that if they don’t need all rights, you can offer them a better deal - they are usually happy to take the cheaper option.

also think about this: model agencies always limit the usage (for example “six months pos only, no advertising rights”). music publishers always limit the usage (“12 second clip to be used in 3 spots running domestically 60 days"). why? because they’re protecting their intellectual property.

and lastly, i have made thousands of dollars from clients who have come back to me for additional rights as well as stock sales (although admittedly, it’s not what it used to be). furthermore, i have very good paperwork and i register my copyrights, so that if they do try an end run around our original deal, i’m in a very good position to collect not only usage fees, but also damages and legal fees.

but hey, to each his own. if that’s all sounds too complicated or too uptight, by all means, do what works for you.

(nice work by the way  )

I would offer a different opinion if it was 10 years ago.

I think it's also a different case for a very new photographer.

It's true that anything could happen - that means it's true that the  $250 client refers a much bigger client to you who doesn't ask for a buyout.

The question is, from the present, which way will you be more likely to make more money rejecting all work for hire jobs or accepting them if you can't negotiate the terms you want?

Al Lock Photography wrote:

The LSAT is incomprehensible to you, isn't it?

I did explain. The fact that you don't get it? Only means that the law is beyond you.

One more thing. The premise of why some contracts exist (in your opinion)? Doesn't make them legal. Model Agencies in NYC used to have girls sign "exclusive contracts" - until the courts ruled the contracts were not valid because both parties were not providing something of value (the contracts put requirements on the models, but the agencies had no requirements on them).

Oh, and clearly you didn't get the consequences of the Microsoft case (which are about copyright).

You haven't explained a single thing, just made baseless insults. Classic projection of what actually applies to you on to someone else.

Start here

"IRS tax rulings[edit]
Simultaneous with Vizcaino, the United States Internal Revenue Service issued a ruling that Microsoft owed millions of dollars in payroll taxes. The IRS determined that permatemp employees were common law employees of Microsoft and the staffing firm's role was simply that of payroll processor.

See also: IRS Reclassification"

"IRS reclassification as an employee occurs where persons claimed as (or claiming to be) independent contractors are recategorized by the Internal Revenue Service (IRS), or by state tax authorities, as W-2 employees. The reclassification can result in the imposition of fines, penalties, and back-taxes for which the employer is generally liable."

You could be confused by this case:

"Vizcaino v. Microsoft[edit]
In 1996, a class action lawsuit was brought against Microsoft representing thousands of current and former employees that had been classified as temporary and freelance. The monetary value of the suit was determined by how much the misclassified employees could have made if they had been correctly classified and been able to participate in Microsoft's Employee Stock Purchase Plan. "

Mikey McMichaels wrote:
The other thing to realize is that size of licensing fee is gone.

Al Lock Photography wrote:
Spoken by someone who has clearly never seen that size of licensing fee and doesn't get how top commercial photographers make their money.

You're wrong. Again. It may be gone for you. But not for all.

I was really enjoying your debate until you guys started pointing fingers at each other.  To be honest, I think you are both offering some great information to debate, even though you don't agree with each other.

Let's try to stay on track.  We're all friends here.  If you disagree, let's see if we can get to the heart of what you are disagreeing on here.

It seems to me, right now you have a different view on the state of license fees and the tax ramifications of "work for hire."  Those are good topics.  I'd like to hear more about both of your viewpoints.  It is enlightening.

A-M-P wrote:
For the right amount of money I would sign it. Specially if the images I produce for said  shoot are pretty much of no use to me afterwards.

Ditto.

Yani S wrote:
... Thats fine I believe somethings are more important then $$
...

I think the financial angle has been discussed to death, but let's get back to this.  The client had you use their camera so you had no images in your possession and then presented you with a surprise contract.  They knew what they were doing and they wanted to take advantage of you.  This indicates that they are shifty people and not the kind I personally would want to work with.  I'm always willing to negotiate and accommodate peculiarities, but that should be done in advance.  There are more goals in life than $$.  Somebody that pulls a stunt like this is giving you fair warning of headaches to come.

GPS Studio Services wrote:

Mikey McMichaels wrote:
The other thing to realize is that size of licensing fee is gone.

I was really enjoying your debate until you guys started pointing fingers at each other.  To be honest, I think you are both offering some great information to debate, even though you don't agree with each other.

Let's try to stay on track.  We're all friends here.  If you disagree, let's see if we can get to the heart of what you are disagreeing on here.

It seems to me, right now you have a different view on the state of license fees and the tax ramifications of "work for hire."  Those are good topics.  I'd like to hear more about both of your viewpoints.  It is enlightening.

Nice guidance!

It's really another case of discussing two different things. He's discussing the business model in the abstract.

I'm discussing the odds of certain things happening.

Al Lock Photography wrote:

Spoken by someone who has clearly never seen that size of licensing fee and doesn't get how top commercial photographers make their money.

You're wrong. Again. It may be gone for you. But not for all.

We're not discussing me, we're discussion the OP who's not, at the moment, a top commercial photographer or his rep would be handling this.

The question is what is the smartest move for him now?

On the one hand he could give up a paying job, more experience, the possibility of getting rehired and the possibility of getting referrals.

On the other hand he could give up something that's speculative and unlikely.

Guss W wrote:

I think the financial angle has been discussed to death, but let's get back to this.  The client had you use their camera so you had no images in your possession and then presented you with a surprise contract.  They knew what they were doing and they wanted to take advantage of you.  This indicates that they are shifty people and not the kind I personally would want to work with.  I'm always willing to negotiate and accommodate peculiarities, but that should be done in advance.  There are more goals in life than $$.  Somebody that pulls a stunt like this is giving you fair warning of headaches to come.

I don't know - if a company came to me and said that they wanted me to take pictures and I was going to be provided the camera to facilitate that. A work-for-hire contract wouldn't come as a surprise.

Mikey McMichaels wrote:
You haven't explained a single thing, just made baseless insults. Classic projection of what actually applies to you on to someone else.

Start here

"IRS tax rulings[edit]
Simultaneous with Vizcaino, the United States Internal Revenue Service issued a ruling that Microsoft owed millions of dollars in payroll taxes. The IRS determined that permatemp employees were common law employees of Microsoft and the staffing firm's role was simply that of payroll processor.

See also: IRS Reclassification"

"IRS reclassification as an employee occurs where persons claimed as (or claiming to be) independent contractors are recategorized by the Internal Revenue Service (IRS), or by state tax authorities, as W-2 employees. The reclassification can result in the imposition of fines, penalties, and back-taxes for which the employer is generally liable."

You could be confused by this case:

"Vizcaino v. Microsoft[edit]
In 1996, a class action lawsuit was brought against Microsoft representing thousands of current and former employees that had been classified as temporary and freelance. The monetary value of the suit was determined by how much the misclassified employees could have made if they had been correctly classified and been able to participate in Microsoft's Employee Stock Purchase Plan. "

So, Microsoft gets audited, the IRS decides that the arrangement that they previously didn't object to, they do now object to... and you still can't see my point that "work made for hire" is subject to more potential legal changes than a licensing agreement?

I also noted that you have completely ignored the points regarding Conde Nast (whose "work for hire" contracts were ruled invalid) or NY modeling agencies contracts of 30 years ago (that were also ruled invalid).

The courts haven't actually been very pleasant to "work for hire" contracts unless the requirements of the person covered fit those of an employee. That's reality. Not probability. Companies use "work for hire" agreements the same way that the US Government uses waivers of liability - not because they are valid, but to reduce the chance that someone will take them to court.

Mikey McMichaels wrote:
We're not discussing me, we're discussion the OP who's not, at the moment, a top commercial photographer or his rep would be handling this.

Here's another big surprise for you. Not all commercial photographers (not even those at the very top) have reps. Some prefer to represent themselves.

As for the rest of your comments - they strike me as the attitude of someone who will NEVER see those sorts of fees because he values his own work so little.

Guss W wrote:
They knew what they were doing and they wanted to take advantage of you.  This indicates that they are shifty people and not the kind I personally would want to work with.  I'm always willing to negotiate and accommodate peculiarities, but that should be done in advance.  There are more goals in life than $$.  Somebody that pulls a stunt like this is giving you fair warning of headaches to come.

Bingo.

Al Lock Photography wrote:

So, Microsoft gets audited, the IRS decides that the arrangement that they previously didn't object to, they do now object to... and you still can't see my point that "work made for hire" is subject to more potential legal changes than a licensing agreement?

I also noted that you have completely ignored the points regarding Conde Nast (whose "work for hire" contracts were ruled invalid) or NY modeling agencies contracts of 30 years ago (that were also ruled invalid).

The courts haven't actually been very pleasant to "work for hire" contracts unless the requirements of the person covered fit those of an employee. That's reality. Not probability. Companies use "work for hire" agreements the same way that the US Government uses waivers of liability - not because they are valid, but to reduce the chance that someone will take them to court.

Nothing changed related to work for hire in the Microsoft case.

Contractors, which could be any job description including janitor, we reclassified as full-time employees and the IRS made Microsoft pay taxes that they hadn't paid. There's no IP or work for hire angle to it.


Provide some links for the stories and I'll read them. Otherwise, I'll assume there as irrelevant to this thread as the Microsoft case.

Mikey McMichaels wrote:
Provide some links for the stories and I'll read them. Otherwise, I'll assume there as irrelevant to this thread as the Microsoft case.

I take it you think the world came into existence with the internet. You live in NYC. You have a massively large public library there in which you can find micro-fiche of the cases I noted. This may amaze you, but the total of all knowledge is not available on the internet, and courts did rule on contracts before the internet existed.

A few links you might bother to read, since they contradict your position:

http://www.ivanhoffman.com/work.html

http://www.ivanhoffman.com/work2.html

http://en.wikipedia.org/wiki/Work_for_hire

http://www.copyhype.com/2011/08/marvel- … rmination/

http://chart.copyrightdata.com/c04B.html

http://copylaw.com/new_articles/wfh.html

Photography is NOT one of the categories subject to "Work Made For Hire" agreements with non-employees.

Al Lock Photography wrote:
I take it you think the world came into existence with the internet. You live in NYC. You have a massively large public library there in which you can find micro-fiche of the cases I noted. This may amaze you, but the total of all knowledge is not available on the internet, and courts did rule on contracts before the internet existed.

A few links you might bother to read, since they contradict your position:

http://www.ivanhoffman.com/work.html

http://www.ivanhoffman.com/work2.html

http://en.wikipedia.org/wiki/Work_for_hire

http://www.copyhype.com/2011/08/marvel- … rmination/

http://chart.copyrightdata.com/c04B.html

http://copylaw.com/new_articles/wfh.html

Photography is NOT one of the categories subject to "Work Made For Hire" agreements with non-employees.

My info comes from more than one lawyer. I've not based my comments on things I've read on the internet.


This is a direct quote from one of your links:
"On the other hand, if the work is created by an independent contractor or freelancer, the work may be considered a work for hire only if all of the following conditions are met:

    the work must come within one of the nine limited categories of works listed in the definition above, namely (1) a contribution to a collective work, (2) a part of a motion picture or other audiovisual work, (3) a translation, (4) a supplementary work, (5) a compilation, (6) an instructional text, (7) a test, (8) answer material for a test, (9) an atlas;

    the work must be specially ordered or commissioned;

    there must be a written agreement between the parties specifying that the work is a work made for hire.[1]"

Photography falls under #1 and or #2. A magazine, and tons of other things photos are used for are collective works.

This is why you ask a lawyer, not based your understanding off of your own interpretation of something you read on the internet.

Mikey McMichaels wrote:
Photography falls under #1 and or #2. A magazine, and tons of other things photos are used for are collective works..

The courts have ruled IT DOESN'T. Those lawyers you are talking to? Should start paying attention to judgements and you shouldn't be paying attention to them.

Mikey McMichaels wrote:
Photography falls under #1 and or #2. A magazine, and tons of other things photos are used for are collective works..

Al Lock Photography wrote:
The courts have ruled IT DOESN'T. Those lawyers you are talking to? Should start paying attention to judgements and you shouldn't be paying attention to them.

Once again, we are having one of those discussions where both of you are right and both of you are wrong.  This becomes a good topic to talk about because I can see how each of you has come up with your own view.

When we have these disagreements, it is always best to look at the law, cases or well known sources.  Doing so gives us something we can all read and interpret.  That gives us common ground.

The Copyright Office publishes an advisory bulletin which gives us a lot of information on the subject.  CLICK HERE to read the circular.

One of the main, controlling cases they rely upon is from SCOTUS.  It is Creative Non-Violence v. Reed.  It is a great case that sets the groundwork we use to define an "independent contractor" and affirms the nine categories set forth in the statute as being essential to determining that applicability of a "work made for hire" agreement.  The case itself, doesn't speak greatly to when it applies to photography because it dealt with a sculpture.  None the less, it is critical to the analysis.

The two issues are when, and if, criterias one (1) and (2) apply to photography.  The answer is, they do, but they don't always.  That is why you are both right and you are both wrong.

Basically, you have to determine if what you are doing is a collective work or an audiovisual work.  The online legal dictionary, uslegal.com, defines a collective work, in pertinent part] as:

uslegal.com wrote:
Collective work refers to a publication such as a periodical issue, anthology, or encyclopedia in which several contributions, constituting separate and independent works in themselves, are assembled into a collective copyrightable whole.

CLICK HERE to read the entire citation.

So if you were shooting for a magazine, for example, that might qualify.  If you wee shooting for an advertising agency, that combined your photo with artwork and text, that could be a collective work as well.

USLegal.com also defines an audio visual work, in pertinent part:

USLegal.com wrote:
Audio Visual works are those which are both audible and visible. For example, films and tape recordings, that presents information in audible and pictorial form.

CLICK HERE to read the entire citation.

Reading from the definition, for a photograph to be an "audio visual work" it would have to be combined with a sound track.  Images by themselves may not qualify.

The point is that, copyright doesn't have a blanket inclusion or exclusion as to photography and work made for hire agreements.  Whether or not it applies to a photograph will depend on the specific facts relating to the shoot.  In some circumstances, a work made for hire agreement will be enforceable.  Likewise, in others, it may not.

The risk, however, isn't to the photographer, it is to the client.   If the client asks the photographer to sign a "work made for hire" agreement and it turns out to be invalid, the copyright will rest with the photographer, despite the agreement.    That really was the point of Creative Non-Violence v. Reed.  It firmly established that one of the nine criteria had to be met or the work made for hire agreement would be unenforceable.

Thank you both for providing good answers that added to the conversation.  When I said you were both right and wrong, it should be clear that you were both more right than wrong.  The problem is that, we didn't define the context closely enough, which, as is often the case in the law, leaves room for a grey area.  That's how attorneys make money.

Again though, it bears repeating, this is a discussion between lay people.  None of us is attorneys.  To get a good answer on a legal question, the best answer comes from a lawyer, not the forums.

Yani S wrote:

True! So you don't think it hurts other photographers then?
I would not resell those images. I did not even take them with me! They have the SD card with all of them. With I agreed with already and fine with that. Its the part of signing away photographers rights that was wrong to me

Sorry I didn't get back sooner. No, it doesn't hurt other photographers. You set your price accordingly, and walk away happy. Especially if you have no use for the stuff. Considering you don't have possession of the images, you need to just sign the damn paper and put an end to the angst.

Next time, know what you're getting into.

Mikey McMichaels wrote:

They sound off because they're not what you want to hear maybe?

Others don't have more facts they have unsubstantiated claims and references to cases that you assume you can look up. Why don't they have quotes or links like a footnote. I almost quoted the wiki on the Microsoft reclassification, but people here dismiss Wikipedia unless it supports their point.

The only "facts" I have are the written answers from an IP lawyer I co-authored an article on that analyzed whether a mix of a multitrack audio recording was a separate copyright. In order to answer that we had to define who could have a claim in connection with an audio recording (both the master and underlying composition) define derivative work, and what makes something a work for hire. So he made sure I was clear and he fact checked the article.

I like to break things down as simple as possible - B&W. You'll see posed above in someone else post some of the requirements for a written agreement. That was one of the specific elements of the scenario we were presenting. So I asked him "is it accurate to say that in the absence of a written agreement, no work done by a contractor is ever considered a work for hire". He confirmed that was accurate. I remember that one because it comes up so often and years ago, I'd go back to the emails and dig up the quote.

The rest of the facts were spelled out that way - specific questions with confirmations, some hyperbolically to ensure I was grasping the underlying concept.


The reason my perspective is sticking out is that everyone else is looking at labor laws and using them to determine who owns a copyright. Labor laws don't determine that copyright laws do. You need to look at it from a copyright law perspective, not a labor law.

The labor laws determine the remedies to specific types of violation.

If you and I sign an agreement we are each bound by it. If you breach it, I'm still bound by my part in the concept of the law, but not in the practical terms of the law.

Let's say we sign an agreement where I sell you an object and you take it and the agreement  says that you'll pay in 30 days. It doesn't specify anything about ownership reverting or me having the right to repossess it.

Then you don't pay, what can I do? The answer is that I sue you for a breech of contract. I can't sue you for the money you've made using the object (let's say it was a tool). Ownership doesn't revert, plus I don't want a used object back, I want my payment.


If you sign a work for hire agreement and they don't do what they promise, that doesn't change your obligations. So they still own the copyright,  it you can sue for the promises they haven't delivered.

If you were entitled to things that and employee gets by state labor laws, then you sue for those things you didn't receive. The IRS doesn't care about the IP, they care about the taxes they didn't receive. So an illegal work for hire contract isn't invalidated when the hiring party doesn't do what they're supposed to. What happens is that when they sign that work for hire agreement, they are accepting additional obligations that are not written in that contract. They are not allowed to do only the copyright transfer, they must do they whole set of requirements. Any legal actions are to make those things happen, not unsigned the written agreement.

I understand you don't know me so you can't understand that I am very good at excepting things, I don't want to hear as truth and willing to accept if facts are straight. That being said you made a ton of great points. I don't have the chance to get a proper response. Working my ass off!!! But as far as reselling images. I have been repaid for the client wanting to use the images again for other projects! It happens! It won't happen if I don't believe in holding my ground though!

howard r wrote:

the point of my example is that when you give up all rights for the price of limited usage, any scenario is possible. the client owns everything, including the rights to resell the image to a third party. is it likely? no. but is it professionally reasonable to spell out the rights that you are granting for the fee that you are being paid? absolutely.

ask yourself - why did the client present the “buy-out” contract to the op at the last minute? because their company’s legal department got tired of being billed by photographers for additional uses that were not in the original agreement. that should tell you two things right off the bat: #1) that they do end up using the images for other purposes, and #2) that they don’t want to have to pay you a dime for those additional uses!

look at it this way: we get paid for our time, but we should also get paid for the usage. i have no problem getting paid $500 for an actor headshot. that’s a shitload of money for an hour of my time. but i would have a huge problem shooting a national ad campaign for $500 an hour. it’s still the same hourly rate, but the usage takes it to a whole other level.

furthermore - when you explain to your clients that you will have to charge them more for all rights, and that if they don’t need all rights, you can offer them a better deal - they are usually happy to take the cheaper option.

also think about this: model agencies always limit the usage (for example “six months pos only, no advertising rights”). music publishers always limit the usage (“12 second clip to be used in 3 spots running domestically 60 days"). why? because they’re protecting their intellectual property.

and lastly, i have made thousands of dollars from clients who have come back to me for additional rights as well as stock sales (although admittedly, it’s not what it used to be). furthermore, i have very good paperwork and i register my copyrights, so that if they do try an end run around our original deal, i’m in a very good position to collect not only usage fees, but also damages and legal fees.

but hey, to each his own. if that’s all sounds too complicated or too uptight, by all means, do what works for you.

(nice work by the way  )

These where my points when I explained it to a friend. No one would go out of their way to look up laws and type up a "Work for Hire" contract if it didn't have value to them! If they where just going to use it for what they said only in the first place. Then there would be no point to hire a lawyer to draft one up! This is a cost so there is much more to signing your rights away! But people are lazy now and will give away their rights for a couple of crumbs! Microwave-Minds Im going to start calling them!

Guss W wrote:

I think the financial angle has been discussed to death, but let's get back to this.  The client had you use their camera so you had no images in your possession and then presented you with a surprise contract.  They knew what they were doing and they wanted to take advantage of you.  This indicates that they are shifty people and not the kind I personally would want to work with.  I'm always willing to negotiate and accommodate peculiarities, but that should be done in advance.  There are more goals in life than $$.  Somebody that pulls a stunt like this is giving you fair warning of headaches to come.

Ya- this is what making me really sad! I trusted that person she lied to me. even when I asked her straight out why do you want me to shoot with your camera when I don't shoot Canon but Nikon. It seemed risky for a client to not want me to use my own gear. I adapt and learn quickly but no one knows that! But not quick enough because I realized after the "work for hire" contract was set on the table I was set up! first time I was upset don't think she expected that! I don't get mad and am always positive but felt used and cheated at that point! Ive since then written her off. To bad I respected her highly before that!

Mike Collins wrote:
The bad thing about any Forum, such as this, is that it is not a court of law.  I have a feeling we are not hearing ALL of the story here.  Heck, I don't even know what this person shot!

But for me, questions would automatically pop up BEFORE in a situation like this.  One, the OP was hired by a photographer.   To me that sounds like a second shooter.  I think MOST times a second shooter, like in a wedding, would need to hand over the copyright to the Hired photographer so he CAN use the images for his clients.  YOU owning the copyright is of no use to me.   Two, he used the other photographer's camera.  Again, sounds like being hired as a second shooter. 

The OP was wrong from the beginning.  Why?  Sorry OP, you DON"T sign and agreement AFTER you shoot.  You sign it BEFORE you shoot so EVERYONE is clear s as to what is about to incur.  And if I'm going to work for a studio/photographer and THEY give me equipment to use, right off the bat I am thinking "work for hire".  I need to clear things up BEFORE I  begin shooting.  I don't have problem with work for hire.  But I want to know BEOFRE I shoot. 

The OP talks about others bringing down the profession.  Well, this is one way they do it as well.  Sorry OP.  I can't agree with the way you even handled this.  Whether we agree about work for hire situations or not.   As a professional you get ALL the info BEOFRE the shoot begins.  So you don't end up on forums like this wondering who was right or wrong.

Your right you have no idea how it works in this case. Your way off the mark but thats ok. But wow you went way left field. One I never said I got hired by another photographer! Guess you think because a company owns a camera that makes them a photographer. Funny thats how a lot of GWC think too! Lots of companies own equipment or rent equipment. I can afford ever thing! I would love to Im maxed out owning $75Gs worth of equipment and there are lens that pass that mark alone!

GPS Studio Services wrote:

 

Mikey McMichaels wrote:
Photography falls under #1 and or #2. A magazine, and tons of other things photos are used for are collective works..

Al Lock Photography wrote:
The courts have ruled IT DOESN'T. Those lawyers you are talking to? Should start paying attention to judgements and you shouldn't be paying attention to them.

Once again, we are having one of those discussions where both of you are right and both of you are wrong.  This becomes a good topic to talk about because I can see how each of you has come up with your own view.

When we have these disagreements, it is always best to look at the law, cases or well known sources.  Doing so gives us something we can all read and interpret.  That gives us common ground.

The Copyright Office publishes an advisory bulletin which gives us a lot of information on the subject.  CLICK HERE to read the circular.

One of the main, controlling cases they rely upon is from SCOTUS.  It is Creative Non-Violence v. Reed.  It is a great case that sets the groundwork we use to define an "independent contractor" and affirms the nine categories set forth in the statute as being essential to determining that applicability of a "work made for hire" agreement.  The case itself, doesn't speak greatly to when it applies to photography because it dealt with a sculpture.  None the less, it is critical to the analysis.

The two issues are when, and if, criterias one (1) and (2) apply to photography.  The answer is, they do, but they don't always.  That is why you are both right and you are both wrong.

Basically, you have to determine if what you are doing is a collective work or an audiovisual work.  The online legal dictionary, uslegal.com, defines a collective work, in pertinent part] as:

uslegal.com wrote:
Collective work refers to a publication such as a periodical issue, anthology, or encyclopedia in which several contributions, constituting separate and independent works in themselves, are assembled into a collective copyrightable whole.

CLICK HERE to read the entire citation.

So if you were shooting for a magazine, for example, that might qualify.  If you wee shooting for an advertising agency, that combined your photo with artwork and text, that could be a collective work as well.

USLegal.com also defines an audio visual work, in pertinent part:


CLICK HERE to read the entire citation.

Reading from the definition, for a photograph to be an "audio visual work" it would have to be combined with a sound track.  Images by themselves may not qualify.

The point is that, copyright doesn't have a blanket inclusion or exclusion as to photography and work made for hire agreements.  Whether or not it applies to a photograph will depend on the specific facts relating to the shoot.  In some circumstances, a work made for hire agreement will be enforceable.  Likewise, in others, it may not.

The risk, however, isn't to the photographer, it is to the client.   If the client asks the photographer to sign a "work made for hire" agreement and it turns out to be invalid, the copyright will rest with the photographer, despite the agreement.    That really was the point of Creative Non-Violence v. Reed.  It firmly established that one of the nine criteria had to be met or the work made for hire agreement would be unenforceable.

Thank you both for providing good answers that added to the conversation.  When I said you were both right and wrong, it should be clear that you were both more right than wrong.  The problem is that, we didn't define the context closely enough, which, as is often the case in the law, leaves room for a grey area.  That's how attorneys make money.

Again though, it bears repeating, this is a discussion between lay people.  None of us is attorneys.  To get a good answer on a legal question, the best answer comes from a lawyer, not the forums.

Thanks Im going to look into this!

Michael McGowan wrote:

Sorry I didn't get back sooner. No, it doesn't hurt other photographers. You set your price accordingly, and walk away happy. Especially if you have no use for the stuff. Considering you don't have possession of the images, you need to just sign the damn paper and put an end to the angst.

Next time, know what you're getting into.

I have done this a hundred times! This was the first I was presented with this for the same thing thats been done many times over the years! So that the reason Im am here to know what Im doing before getting into it again! But thats for the kind of know before hand response because nothing ever changes in life! It was extremely helpful!

GPS Studio Services wrote:
Darned, forum guides aren't supposed to make mistakes.  This is a "Double Post."

Your Fired!!! JK ;D

GPS Studio Services wrote:
The two issues are when, and if, criterias one (1) and (2) apply to photography.  The answer is, they do, but they don't always.  That is why you are both right and you are both wrong.

I almost went back and edited my post to say "in most cases". For the very reasons you have noted -

But having said that, Conde Nast LOST about work for hire in regards to editorial photography. The courts ruled their work made for hire agreements were not valid.

The great majority of photography done for clients does not fall within the criteria necessary for a work made for hire agreement to be legally valid.

And as you properly pointed out (and was my initial point at the outset), the risk lies with the client, something most clients are completely unaware of.

I'm convinced that most clients and their lawyers who want photographers to sign work for hire agreements do so not out of legal correctness, but because they expect the contract to give them a bluff that will keep them out of court.

Stickgunner wrote:
The last work for hire I did was $7k.  They sent me a plane ticket, I brought my camera gear and shot for 2 days. They put me up in an executive suite, and took me out for all my meals. 

At night when I got back to the hotel, I did some light processing in Light Room to show them a few different looks the next day.  I batch processed a couple looks I thought they would like, even though it was above my contract.  They treated me very well, and since LR is so easy to batch process, it was an easy "thank you".  They had their own graphics and catalog design team standing by for the images.  At the end, they got everything except flash failure or other shots which were obviously flawed. 

I've done this for the company twice, and will most likely do it again.  I understand there are people who will say that $500 travel days and $3k shooting days is not enough, but I don't feel like I got screwed in the least.

There is a very good chance that your "work for hire"? Wasn't.

GPS Studio Services wrote:
The two issues are when, and if, criterias one (1) and (2) apply to photography.  The answer is, they do, but they don't always.  That is why you are both right and you are both wrong.

Al Lock Photography wrote:
I almost went back and edited my post to say "in most cases". For the very reasons you have noted -

But having said that, Conde Nast LOST about work for hire in regards to editorial photography. The courts ruled their work made for hire agreements were not valid.

The great majority of photography done for clients does not fall within the criteria necessary for a work made for hire agreement to be legally valid.

And as you properly pointed out (and was my initial point at the outset), the risk lies with the client, something most clients are completely unaware of.

I'm convinced that most clients and their lawyers who want photographers to sign work for hire agreements do so not out of legal correctness, but because they expect the contract to give them a bluff that will keep them out of court.

The applicability of "work made for hire" agreements is one of the most confusing areas of copyright law out there when it applies to independent contractors.  It is much clearer when bonifide employees are involved.  The courts have not even been consistent in their rulings.   Appellate decisions are only binding on the circuit where they are issued and there are not a lot of SCOTUS rulings. District court cases don't create precedent and are not typically published.  That is why I used the word "may," liberally in my post.  Even things that seem like they should fall under a "work made for hire," may not.

For the record, with knowledgeable counsel, it is more common to use an "assignment of copyright" agreement when appropriate or a "grant of full exclusive rights."  While the client doesn't generally become the "first holder of copyright," the affect is almost the same and is less likely to be challenged.  That reduces the risk to the client, but that is an entirely different discussion. 

Then, we are digressing.  Thanks for your follow-up post.