November-December 2014 … The Global Online Magazine of Arts, Information & Entertainment … Volume 10, Number 6
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Feeding the Starving Artist

Their Album or Video,

Whose Copyright?


by Mark Levy and Roman Zelichenko


As a still photographer or a videographer, freelance projects can be a great source of experience, exposure, and at the very least, some spare change.  Let’s say a newly engaged couple approaches you and asks you to photograph or videotape their wedding.  Some questions immediately come to mind.  Who exactly wants to be photographed or taped?  When and where will the photographing or taping be done?  How much will you be paid? Will equipment be provided or do you need to provide it yourself?  These questions are realistic and will likely determine whether you accept the project.  You’re probably not thinking about long term legal ownership and copyrights, but should you be?

COPYRIGHT LAW

According to the Copyright Act of 1976, the creator of a work is the owner of the copyright to that work, unless other explicit, written legal arrangements have been made.  This no longer means, as the 1909 version of the law originally stipulated, that protection is granted only to works of art that are “published.”  Now, a work that is “fixed in any tangible medium of expression,” like a DVD or a memory stick, can be protected by law even if it is not actually “published.”  There is, however, an exception to this: a “work made for hire,” which deals with a work created by one individual that was commissioned by another.  The nature of freelance projects is exactly this, so let us explore this exception.

EXCEPTION

The “work made for hire” doctrine essentially states that although a work is created by one individual, the copyright to that work (i.e., the right to display and copy it), may be owned by another (i.e., your client).  Thus, the couple that hires you to photograph or tape their wedding becomes the commissioning party while you, the photographer or videographer, are the creator.  You will spend hours preparing the equipment, planning angles and lighting, transporting equipment, editing and burning DVDs, and ultimately creating a memorable album or video.  What if, after all your effort, you find that you want to use the shots or the video to display your skills to potential clients?  Conversely, what if the couple gets famous and the photos or video is broadcast thousands of times?  Can the couple upload portions of your work online?  It is important to know who, in the end, will have copyright rights to your work.

CASE LAW AND YOU

According to the Copyright Act, a work is “made for hire” when: (1) that work is “prepared by an employee within the scope of his or her employment”; or (2) when the work is commissioned to be used in one of nine specified categories and there is a written, signed agreement between the parties expressing that the work “shall be considered a work made for hire.”

Lawyers (bless them!) get paid to battle over works such as “employee” and “employer” and whether their client fits into either category.  Luckily, however, since the 1989 U.S. Supreme Court case, Community for Creative Non-Violence v. Reid, these words have been given clear definitions.

In CCNV v. Reid, the Supreme Court declared that an “employee” relationship is mainly determined by the hiring party’s influence on the project.  Some factors that weigh into this are the skills required, the source of the tools (did the hiring party or the artist provide them?), the duration of the relationship between the parties, the presence of employee benefits, and the hiring party’s tax treatment of the artist, among others.  These factors, however, can be hard to predict when beginning a project.  Accordingly, the Supreme Court made it difficult for a hiring party to prove that the work was made for hire.  It could certainly be unfair if, at the end of the project, the couple who hired you decided they had sufficient influence, asserted an employee relationship, and claimed copyright ownership.

For a small, one time project, such as the wedding product, you might not enter into a contract expressly stating that the work is “made for hire.”  If this is the case, even if your project falls within one of the nine categories specified in the statute, you – not your client – will own the copyright rights.  In other words, your clients will own the DVDs you provide (after all, that is what they paid for), but they will not be permitted to display them publicly or make copies of them without your permission.  This is the same as owning a CD or a commercial DVD but not being allowed to copy it.

Thus the law is on your side.  It’s important to keep the “work made for hire” exception in mind when taking on a project, but it should not stop you from doing so and should, in fact, empower you.  As the creator of a photo album or video, you will have the power of the court behind your copyright ownership and behind the subsequent use of your work as well.  Still, it’s a good idea to have a written agreement with your clients, spelling out each party’s rights and obligations.  This simple, professional step can help prevent litigation and having to share your profit with your friendly lawyer.

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About the authors:

Mark Levy is creator of ragazine’s “Feeding the Starving Artist” column, a free legal resource for artists and others involved in creative pursuits. His bio is on the ragazine “About Us” page. Levy also writes ragazine’s “Casual Observer” column that appears monthly.

Roman Zelichenko is attending Brooklyn Law School.