Intellectual Property Law

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I have a question in regards to photography created for a…

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Hi - I have...

Hi - I have a question in regards ***** ***** created for a company

Lawyer's Assistant: What state are you in? It matters because laws vary by location.

California (Los Angeles)

Lawyer's Assistant: What steps have you taken so far?

Only confronting the company

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

The general run down - created photo content for them for 3 years on a retainer - signed no contracts on either end but they ended the project and said they own the images and can use them indefinitely without limitation. I gave them the option to buy out the rights to use them by the month, year or indefinitely but they are no longer responding. I said after 30 days of ending the project they should stop using the content - they did for a week and now are back to using the imagery. Is there anything I can do as they continue to profit off these?

Submitted: 29 days ago.Category: Intellectual Property Law
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Answered in 10 hours by:
5/27/2018
IP Lawyer: Attorney Wendy, Lawyer replied 29 days ago
Attorney Wendy
Category: Intellectual Property Law
Satisfied Customers: 971
Experience: Member at Keefer & Keefer LLC
Verified

Hello. My name is ***** ***** I am an attorney. A lot of the answer to your question goes back to whatever your agreement was at the time you took the photos. The law includes a doctrine - work for hire - that used to presume that if someone else pays you to create intellectual property (such as your copyright protected photos) the party paying for that work owns the intellectual property (here the copyright on the photos). Under current law, this doctrine still applies if you are an employee; but if you are freelance photographer/independent contractor, to be work for hire your agreement with the customer should expressly state that. It is common for contracts for work like photography to address this issue and either accept/acknowledge the work for hire doctrine, or specify limited rights of use by the paying party, or creating a limited license (in time or scope) for use, etc. If the contract does attempt to treat your photos as work for hire, and you are an independent contractor, then to actually be a work for hire, the photos would have to fall into one of 9 categories; otherwise the work for hire doctrine may not apply (so this could work in your favor as well if your work does not fall in one of these categories):

1. A work specially ordered or commissioned for use as 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

If you have not done so already, you may want to review any documents that formed your contract when you were on retainer to determine who actually owns the rights to the photos. If you retained the copyright, then you would want to consider sending them a formal cease and desist letter stating that failure to stop using the photos will force you to take legal action for copyright infringement, breach of contract, etc. Unfortunately, if the agreement with this company gave them rights to the photos without any time limitation, then they can continue to use them with no additional payment to you. If the photos were deemed - and properly deemed - work for hire, then not only can they use them, you could not without their permission. And, if the ownership was not specified, you should still own the copyright and their use would be whatever use was specified in the contract.

Do note that in California, if the photography you did was considered "work for hire" it may be that this company was then legally required to treat you as an employee, meaning providing you any benefits provided to employees. So, you may be able to use this point as leverage. In other words, the company has a choice - does it want you to have been an employee who could now potentially sue for failure to provide all benefits and follow all employment laws; or do they want to pay you for the photos and keep you an independent contractor. So, to be a work for hire by an independent contractor the work has to fall in one of the 9 categories above; if instead you were converted from an independent contractor to an employee then the photos do not have to fall into one of those categories to be a work for hire, but the company would have then had to treat you as an employee or run the risk of violating other laws.

I hope this information helps. If you need further assistance, feel free to reply to this email. If I answered your question and provided excellent service, I would greatly appreciate your 5 star rating at this time.

Please note: This information is for educational purposes only and is not legal advice. No course of action is being proposed and no attorney-client relationship or privilege has been formed as a result of this conversation.

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IP Lawyer: Attorney Wendy, Lawyer replied 27 days ago

Just wanted to check back in to see if you needed any further assistance.

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