Q: Are photographers owners of their photos if there is no written contract?
I had a recurring client for about a year and we've always had verbal agreements, no written contracts. The client now owes me money for services rendered and refuses to pay due to an issue they has with me personally. They've threatened me with legal action, requesting that I remove all of their photos and videos from my website and social media platform. The photos/videos have been up for about a year and client never had any problem with it until now. They claim I have no right to post these pictures as they belong to them. As the creator of the work, am I the owner? I'll be removing the photos eventually, but I want to make sure that if I am indeed the owner, then I have the right to request that they no longer promote the work themselves.
A: Who owns the photographs? It depends.
Could you be considered an employee?
Any copyrightable work created by an employee acting within the scope of his or her employment is a “work made for hire.” The parties do not need to address works made for hire in their employment agreement, negotiations, or any other written agreement. If it’s an employee-employer relationship, and there is no written agreement to the contrary, the default is that the employer owns the copyright to the employee's creative works produced in the scope of their employment.
However, any copyrightable work created by an independent contractor for the employer who hired them, is not a “work for hire” without an express written agreement. So, if someone is considered an independent contractor, and there is no written agreement assigning you ownership, the default is that the independent contractor owns the copyright interest.
Many valuable copyrighted works result from creative collaborations. U.S. copyright law allows for two or more parties to own the copyright in a work as joint authors. Section 101 of 17 U.S.C. (U.S. copyright law) defines a “joint work” as “a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.” The authors do not need to work together at the same time, but they must intend, at the time of contributing to the work, that they work be merged with another author’s into a unitary whole. For example, Jonathan has an idea for a screenplay about a resource-depleted Earth in the near future. His brother, Christopher, wants to write a screenplay where a good looking everyman is sent into space to save Earth, but encounters wormholes and black holes. Jonathan and Christopher both begin writing a single screenplay together which incorporates both ideas; they are coauthoring a joint work.
If joint authorship is disputed in a lawsuit, the court will look to (1) the nature of each person’s contribution and (2) whether each collaborator had the requisite intent to create a joint work. In looking at the nature of the contribution, a court might look to the degree of creativity in the contribution and whether the author contributed only abstract ideas or and actual copyrightable expression of the work. In examining the coauthor’s requisite intent to create a joint work, the coauthors don’t necessarily need to intend to share credit for the work or to share any of the legal rights of authorship; they must intend to combine their contributions into a single work.
Each of joint owner in a copyright has the right to fully exploit the work, even without the consent of the other owners. But, they must account for the profits of that exploitation by splitting them equally among all of the joint owners. Equal ownership is presumed under the law, even where the authors' respective contributions are unequal. Going back to our example, Jonathan cannot deprive Christopher of his ability to exploit the work, without Christopher’s permission. So, a coauthor’s exploitation right only applies to nonexclusive licenses. One joint owner cannot assign the exclusive license (that is prohibit anyone else from doing anything with the work) without the consent of all copyright owners.
Are the photographs/videos of people? If so, do you have a signed model release?
In many jurisdictions, people have a right to control how their name or likeness is used commercially. If you exploit someone's name or likeness without their permission, then you can potentially be sued.
The lesson here is: Don’t start work without a contract. Determining ownership rights after a project is completed is like putting a helmet on while you’re on the way to the hospital after crashing your bike. You have already lost the preventative benefits.
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