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Who Owns The Photos Shot By A Non-employee Contract Photographer?

Published: 11/01/2016
By: larry

WhoOwnsThePhotosGavin recently posed the following question:

I worked for a RE Photography business for a year and then bought it outright. Business is going well but I have a question about stock images. We have an extensive stock library from before my time. I understand the Photographer owns the images but does the business also retain full rights? I believe the photographers were 1099 contracted or 1 might even have been an employee. Do I the business still have the right to sell these images?

My plan is to sell limited use packages as an add-on to RE customers when they order a shoot, but also sell individual images at a higher price for unlimited use (useful for agents who sell many homes in the same community).

I know I didn’t sign any work for hire agreements with the company so doubt the others did.

Excellent question! First of all, only one party owns the copyright. Either the photographer or the business. Sounds like a simple question but the definition of what it means to work for hire isn't as straightforward as you would think when there is no signed work for hire agreement. I believe that this Copyright office Circular 09 document has the relevant information but far be it from me to explain what it says and how it applies to your situation. I think since you don't have any work for hire agreements you should have a competent IP attorney interpret what Circular 09 means in your situation.

Gavin's situation is a great example of why all photography businesses that hire contract employees should sign work for hire agreements if they expect to own the copyright to photos their contractors shoot!

4 comments on “Who Owns The Photos Shot By A Non-employee Contract Photographer?”

  1. Looks like you bought yourself a situation that could very easily blow up in your face.

    Looking at this from another angle, when buying a business, be sure that all the assets are clearly outlined and free of any third party control. When owning a business, be sure to have written agreements with all who produce material for it.

  2. Hi Gavin: The first thing you should do is check with the copyright office. If the images were registered, they would have the record. If the images were not registered, then my next suggestion is that you look in the metadata of each image - one of the items than everyone should fill in for metadata is the copyright line. If there is no copyright line, then look at old publications of the image and see if they name the photographer or the business in the credit. If the photographer, then you will have to contact the photographer, if the business - then you own it. Finally, if there is no researchable registered copyright or even a copyright by mark or mention - then you could put the images out with the copyright symbol as of the date you bought the business and owned by the business and then all rights reserved and I would register the images with the copyright office for your own protection. If someone steps forward, then offer them an agreement to share the copyright if they can prove 1099 and ownership or if they have W-2's then just say thank you very much.
    The number one suggestion I have is check with a lawyer to make sure this advice is OK in your state or federal government rules. And my number one suggestion to everyone is if you buy an existing business and the assets are stock images - CHECK to see who owns the copyright before buying the business - due diligence. An intellectual lawyer can check this for you very easily for a nice hefty fee!

  3. If the images were registered with the Copyright Office in the name of the business, the images would be assets of the company. If the images are registered by an individual or never registered, they are the property of the registrant or creator. Talk with the former owners of the business, assuming they own the rights, and find out if they would be willing to assign you the Copyright for the images in the stock library or license them to you with an ability for you to resell them. If it turns out that the images were produced by other contract photographers, you may want to not use the images and make your own images of the subjects and register them in your name. Sometimes it's easier to tear the building down and build a new one instead of trying to repair something. It might be time to update some of the photos if they're several years old.

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