Dear Rich: I worked for a very large clothing retail company in the corporate office. Photography was not in any way in my job title. One of the marketing managers knew that I did photography and asked if I would shoot some of the clothes that they were trying to sell to a huge retail company. I first agreed to shoot the products for them to use as line sheets to increase the chances that the other company would buy the products. Then it turned out the president of the company wanted me (more like "made me") to do a much larger shoot with hundreds and hundreds of items over two days. He also hired two professional models. The deal went through and the company carried our products. Then I found out that my images were being used in the stores for huge posters and ad campaigns. My company provided them with the posters and banners to put in their stores. I did not sign anything during the shoot or after. My company never did pay me a bonus as they stated they would. I no longer work there and have not received any compensation for that photo shoot. What would other professional photographers like you out there charge for this type of two-day shoot that was later used for an ad campaign? I'm so glad you asked. Even without a written agreement, an employer owns copyright to everything created by an employee in the ordinary course of employment. For example, do you remember that photograph of the fireman cradling the baby after the Oklahoma City bombing? That was taken by an employee of a gas company whose job was to investigate gas explosions and take photographs of the scene. The gas company employee tried to assert ownership of the photo in order to sell it on t-shirts, but a court ruled the photo was taken within the ordinary course of employment and belonged to the employer. To determine what's the "ordinary course of employment" courts sometimes ask three questions:
- Was it done on the clock? (Yes, in your case.)
- Did you take any actions or say anything that indicated that your employer owned the copyright? (We're not sure about that.)
- Was it part of your job description -- that is, was it one of your duties as an employee to take photographs of the goods? (Apparently not, according to your letter.)
As we mentioned in a
previous entry, we would also need to know the contents of your employee handbook or employment contract. In any case, the
Dear Rich staff thinks you have a reasonable argument to claim copyright ownership but that it is probably a close call, primarily because the photographs were taken on company time, at the company's facility, and with contributions from the company - they hired the models and apparently supervised the shoot. We're also concerned about that bonus you discussed. If it was negotiated as separate payment for the work, then that could influence your ownership claim. As for what would other photographers charge for similar services, the best answer can be found by checking pricing rates at other photographer's websites, or using one of the popular
books or
pricing tools. (P.S. Although I am not, as you state, a professional photographer, some of my best friends are, and their
work decorates my office.)
