Legal Question in Business Law in New Jersey

Re: Who owns the work of a subcontractor?

The answer is extremely sensitive to the specific facts. There are several issues that are raised by your question. See if this helps:

The photos that result from the arrangement need to be thought of as separate from the copyright in the photos. The purchaser owns the photos but not necessarily the copyright. So, the purchaser can use the copy of the photo that has been sold pretty much as he likes so long as that use does not violate the photographer's copyright (if any). Publishing the photo, such as in an advertisement, would require use of the copyright, for example.

We then must ask who owns the copyright? This is the so-called "work for hire" doctrine. If the photographer is an employee and the work is within the scope of his employment, Title 17 makes it clear that the employer is considered to be the author and owns the copyright. If, however, the photographer is an independent contractor, then he is considered to be the author unless there is a written contract to the contrary and the work fits within very narrow, enumerated categories. In most situations,but not all, the photographer would own the copyright.

This issue was very hotly debated following the revision of the Copyright Act in 1985. I wrote a paper for a well-known author/publisher group on its applicability to computer programs. The part of the Act pertaining to work for hire has remained pretty much unchanged since then.

I you have a dispute over this issue, don't try to handle it yourself and don't litigate it in State court. Over time, the federal judges have built up some understanding of the issue. It is not raised frequently in the State courts. The decisions are not hard to reach if the statute is understood, but it is very much a trap for the unwary.

To help further, I would have to know more about the facts. If I can help, contact me using the information in the Attorney Profile.

See also: http://info.corbettlaw.net/lawguru.htm