If the work is already completed and there is no written agreement, you have a few options to protect yourself. Ask the photographer to enter into a written assignment agreement or exclusive license agreement in the future and offer additional money for these rights. If the photographer refuses, all is not lost. Hiring the photographer and paying for the files gave you an implicit, non-exclusive license to use the photos. However, you cannot register copyright, sue infringers, or prevent others from exploiting the work. Only the photographer has this power. A photography contract is a written agreement that describes the services to be provided by a photographer hired by a person or company. The cost of hiring a photographer varies greatly depending on where they are based, the experience they have, and the type of work they are supposed to do. A photo contract allows both parties to negotiate the terms of the agreement, including the nature of the services, the duration of the agreement and the amount of compensation. The written contract offers more security to the photographer and the hiring party than an oral contract. Both parties are bound by the agreement until the work is completed or the contract is terminated for other reasons. As you`ve probably noticed, the photography industry has many subcontracts.
However, if a session leads to a lawsuit, your exposure and risk can vary greatly depending on the status of your subcontractors. There are two important rules you need to know. Categories numbers 2, 3, 6, 7, 8 and 9 are self-explanatory and probably do not apply in this photographic situation. The others, numbers 1, 4 and 5, deserve an explanation, as they could be applicable to this example photo depending on the situation. It is not uncommon for photographers, especially the more established ones, to refuse to sign a “commissioned work” or mission agreement, even if more money is offered. A work is considered “temporary work” if it was created by an employee in the course of his or her employment. In these circumstances, the employer automatically owns the work and no written agreement is required. An example would be if an employee in a company`s marketing department had taken product photos instead of hiring an outside photographer. The company would own the copyright to these photos. It is a work considered “secondary” to the work of another author in order to introduce, close, illustrate, explain, revise, comment or assist in its use of the other work, such as prefaces and illustrations of a book.
For example, a writer writes a children`s book and hires an illustrator to draw pictures for the book. The work of this illustrator would fall into this category and they could enter into a written agreement “Work for hiring”. First, the agreement must be in writing and explicitly state that it is a “commissioned work”. Some States (e.g. B california) require that an “employment for remuneration” contract be entered into (and cannot be entered into retrospectively) before starting work. Regardless of the state you are in, it is best to conclude the agreement before the start of the work. Another caveat to keep in mind is to enter into “work for hire” agreements with individual contractors in California. California law states that if you enter into a “work for pay” agreement under copyright law, that individual contractor will be considered an employee, resulting in workers` compensation insurance, benefits, wages, and other employment requirements. One way around this problem is to only enter into contracts with companies and not with individuals.
Another option is to enter into only assignment agreements, which are explained below. Secondly, contract work must fall within one of nine specific categories of work. And that`s where it gets confusing. Often, companies enter into a “work for a fee” contract only to find out that the project does not fall into one of the nine categories and that they do not really own the copyright. These nine categories are: Rule 1: From an insurance point of view, a salaried photographer is one who must be equipped with equipment to be able to perform the photo shoot on site. An independent contractor photographer is one who has their own equipment and does not need to be supplied with equipment by the insured photographer. Insurance coverage only protects the insured photographer and his employees. It will not provide defense or judgment coverage to any subcontractor or independent contractor. Have your second shooter and assistant contracts completed with an independent contractor contract. Specify your employment contract for hire or reward, protect your copyrights, and make sure you are out of control with labor laws.
A-One Photography`s liability insurance provided defense and judgment coverage for A-One Photography, but not for Angela Pederson Photography, as she was a subcontractor and should have had her own liability insurance. In addition, A-One Photography had taken out liability insurance for a single photographer, so even if Angela had worked exclusively for A-One Photography as an employee, the coverage would not apply due to inaccurate reports. As a subcontractor, Angela had assumed that she would be protected by A-One Photography`s policies. Since she did not have liability insurance, Angela became personally liable for her share of the loss. Needless to say, it was financially devastating. Example of Rule 1 – A subcontractor loses his business A-One Photography had scheduled a family portrait session for Thursday night. When owner Jon Andersen received a proposal to work on a wedding at the same time, he hired subcontractor Angela Pederson Photography to work on his behalf and cover the wedding under the corporate brand A-One Photography. Here`s a common scenario: You`ve spent months developing your product. Finally, the time has come and you need product photos for your website, social media, and print media. You hire an external photographer who will probably cost more than you wanted to spend. The photographer does a great job and returns the digital files.
You think the photos are yours – including copyright – because after all, you paid the photographer for the photos that are now sitting on your computer drive. False! The photographer owns the copyright unless you have a written agreement that you own it. Example rule 2 – Help has unintended consequences Frank Ryan`s photo activity has exploded. To meet the demand, Frank hired Vern Miller exclusively for his company. Frank thought it was the ideal situation – he could grow up without hiring and paying payroll taxes. However, it is important that an independent photo posted on social media (e.B Instagram) does not “complete” or necessarily complement a larger work. It cannot therefore fall into any of these three categories to be a “commissioned work”, even if there is an agreement stating that this is the case. What is an independent contractor contract and who needs it? This is a contract for non-employees, aka independent contractors, such as second shooters, assistants, photo booth operators, retouchers and more. If you hire one of these types of workers, you will need an independent contractor contract! Sometimes contracts include both a “work for hire” clause and another assignment clause if it is not clear whether the work falls under a “work for hire” category. One evening, Frank and Vern both had family portraits. They knew Vern`s event was going to be lively – he was photographing a big family reunion.
Everything went according to plan until one of the aunts fell on a camera cord and injured her back. She slipped a few intervertebral discs and was unemployed for several months. If the photographer does not assign the rights, you will receive an exclusive license. Although Vern worked on the event, Frank was sued for $300,000 because Vern worked for Frank`s company. In the insurer`s view, the exclusive subcontracting agreement made Vern an employee. During the damage investigation, it was determined that Frank`s business had two photographers, even though he had only purchased one blanket for one. .