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I took several product pictures for a client that they made with a brand. The images were used for social media. No contract on my end with my client. That client worked for an agency but she owned all her clients. They separated ways and now the agency is saying they own all pictures I took and edited. I recently reposted the same pictures on my clients social and the agency sent my client a cease and desist type email. To remove any duplicated images because they owned the rights. To my knowledge I own the pictures as the photographer and I can share them as I please. Am I wrong?

scottbb
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Mamabear
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  • IANAL but if there is no contract, the photo belongs to the photographer. Politely ask them to show you what is the basis of their request? And of there were a contract, it would be with your client, not with the agency. Btw, these notes are usually sent by lawyers. No lawyer, likely no legals grounds... – xenoid Oct 07 '19 at 07:00
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    Consider consulting an attorney. – xiota Oct 07 '19 at 07:01
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    "cease and desist"? – rackandboneman Oct 07 '19 at 07:21
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    @xenoid that might vary by country. – Fábio Dias Oct 07 '19 at 11:54
  • Did you sign anything? – mattdm Oct 07 '19 at 12:01
  • Was the C&D sent to you, or to your client? – LightBender Oct 07 '19 at 12:50
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    @FabioDias The author is automatically granted the copyright. If there is no contract, and if the OP can prove he took the pics, then he could even argue that the pics have been stolen by the agency. – xenoid Oct 07 '19 at 13:04
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    Did you get paid? If you were paid by cheque or electronic transfer, what was the account name? Did you invoice anyone, and if so to what name was the invoice made out? Which country are you, your client, and the agency based in? – Peter Taylor Oct 07 '19 at 13:20
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    @Petet Taylor No contracts regarding photography. Mainly Contract regarding privacy. I was paid by check by my clients personal name never corresponded with agency or worked directly for them. I only submitted hours worked with a small description of the tasks completed. We are all in CA in Orange County. – Mamabear Oct 07 '19 at 13:50
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    It sounds like this might come down to what your client signed with the agency. It's possible they even (incorrectly) signed away your rights. If you want to do anything but just roll over with their wishes, you and/or your client should talk to a lawyer who specializes in this kind of thing. – mattdm Oct 07 '19 at 13:58
  • Cease and desist was sent to my client via email from a supposed lawyer stating my client would be fined $1000 a day till she removed the images that I photographed and edited. We originally posted to her prior agency’s social and now she owns her own agency and we posted her work. – Mamabear Oct 07 '19 at 14:00
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    IANAL but this sounds like a possible "work for hire". Ordinarily when you take photos, you own the work. But if you perform a "work for hire" then the hiring party usually owns the work (absent any agreements that specifically assigns ownership). There are nuances so best to consult a copyright expert. – Tim Campbell Oct 07 '19 at 15:25
  • What is your client's agreement with the brand? – mattdm Oct 07 '19 at 18:32
  • @TimCampbell In the U.S. "work for hire" must be explicitly spelled out in any arrangement, such as a contract (either written, verbal, or understood based on past precedent), that does not involve an employee/employer relationship (as outlined by the IRS). Even in an employee/employer relationship, who owns work is not automatically assigned to the employer in some situations. Being paid does not establish an employee/employer relationship. In the absence of tax withholding (Form W-2) and other records required by the IRS, being paid usually establishes a contractual relationship. – Michael C Oct 07 '19 at 23:15
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    Are you sure they are claiming they own the rights to the photographs? Or are they claiming ownership of the trademarks/branding contained in the photographs? These are two very different questions with very different answers. You may own the copyright to an image without owning the rights to publish that image in certain circumstances/usages if it contains protected intellectual property owned by someone else. – Michael C Oct 07 '19 at 23:22

2 Answers2

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I suspected, and I'm not the only one, that this might fall under the doctrine of "work for hire" as the photos were taken to fulfil a specific commission from a paying client. However, since all parties involved are based in California the jurisdiction is clearly California. US copyright law says that works only fall under "work for hire" when created by an employee or in a set of quite specific circumstances which require (among other things which may also be relevant) a written agreement that it's a work for hire. Unless your contract with your client includes those words, you're correct to believe that you own the rights. (As a side note, California law apparently says that all contracts for work for hire constitute contracts of employment - although this seems to me to contradict a US Supreme Court ruling of 1989).

There are a further complications in assignment of rights and exclusive licences, but again they would have to be mentioned explicitly in the contract.

In short: you're in the right.

Off-topic addendum:

Of course, it's one thing to be right and another to win the argument. You should think about whether it's wise to engage a lawyer, or if you can't afford that then see whether anyone (e.g. a university law school) near you offers a free legal clinic, before you write back to them, lest you accidentally shoot yourself in the foot.1 And you should ask yourself how far you want to take this: what's your tolerance for cost, time, and stress?

1 I'd be tempted to say "If you're claiming that I'm your employee then you owe me wages with interest", but that might not be a good idea...

Standard disclaimer: I'm not a lawyer, and I don't even play one on TV. I do know from experience that being taken to court, even when you're in the right, is quite unpleasant.

Peter Taylor
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    Your understanding of "work for hire" as expressed in the first sentence is basically the exact opposite of reality (and the more correct understanding you express in the rest of your answer). – Michael C Oct 07 '19 at 23:17
  • @MichaelC, no. You're treating US law as universal. In Spain, where I live, this particular case would be a work for hire (photographs taken for publicity, contract doesn't explicitly say that it isn't). That's why I asked in comments which jurisdiction was relevant. – Peter Taylor Oct 08 '19 at 06:12
  • @PeterTaylorvThose differences should be explicit in your answer. Otherwise it appears to contradict itself. – Michael C Oct 08 '19 at 17:53
  • @MichaelC, is "However" in bold text not enough to signal a contrast? – Peter Taylor Oct 08 '19 at 17:55
  • It would be better if the first statement were qualified by listing the place(s) where it is correct. In California and the rest of the US, which are the only locales mentioned by the answer, the first sentence is incorrect. – Michael C Oct 09 '19 at 00:29
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Certainly in UK law - which I think is similar world wide - if you are freelance and do not have an employment contract with a company to work solely for them, then the copyright is owned by the creator, even when it is a commission by a third party, be that Agency or Editorial client or other business. Unless you sign over copyright it remains with you. It is also true in my experience that very few clients know this and when they discover this are quite disturbed and shocked, and frequently fight it. This is ONE small benefit or advantage of life as an artist. The work we make and the copyright in that work usually stays with us. We get to decide where our work may be used.

Patrick
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