Legal Question in Intellectual Property in Arkansas
Who's Intellectual Property Is It?
I have an ad agency. I paid a photographer $1,350. to take pic's for a clients website. The ideas for the shots were mine. I directed the shoot and used people in my clients business as models. He sent me the disk of photos along with a terms & conditions sheet. I never signed the sheet, nor was I aware of it prior to the shoot. He says that he owns the photos and will sell them as stock photos in 1 year. There were no model releases to him. Since I paid him, I thought that anything he shot was for my clients library only. The purpose of the shoot was to ensure my clients own unique look. Otherwise, I could just purchase stock photography on my own.
Can he take these pic's that were my ideas and were shot in my office and profit from them without my consent? Can I require a royalty fee from each of his sales?
When does my intellectual property become his?
Thank you for your time,
--name removed--
2 Answers from Attorneys
Re: Who's Intellectual Property Is It?
Absent agreement to the contrary, if both parties are independent contractors, the copyright in the photos belongs to the photographer. The lack of releases is another issue, however, he can do with them what he wishes. This is a much litigated area in copyright and it comes down on the side of the independent contractor.
Re: Who's Intellectual Property Is It?
Copyright doesn't protect ideas and never has, only tangible works such as finished photographs. If the photographer isn't your employee (as in you hire/fire and withhold taxes on your payroll, etc., then whatever pictures he makes are his regardless of how much money you pay him. The way around it next time is to prepare a written agreement with the photographer whereby he assigns all of his rights to you before he ever snaps a photo and if he won't sign it, then keep shopping until you find someone else who will. The other way around it is to hire a photographer to work for you as an employee in house, assuming of course you can afford to keep a full time photographer on staff, then everything he does belongs to you (this is called work made for hire under the Copyright Act).
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