Legal Question in Intellectual Property in Virginia

Re: Photographic copyright

The photographer is not your employee unless he is really an employee - working for you exclusively, for wages, with taxes withheld, and not in his own independent business. He owns the copyright. That's the law, like it or not. You could have signed an agreement to assign the copyright, and you could still buy the copyright or a license, but that's up to you and the photographer to work out. He is entitled to compensation for that.

Re: Photographic copyright

The photographer owns the copyright. Retaining a photographer to take wedding pictures does not make him your emplyeee. Rather, he is an independent contractor under the law. As such, he retains the copyright, as the "creator" or statutory "author" of the photos.

Your reference to "work for hire" asks a different, related question--whether the copyright the photographer would otherwise own is in fact yours by virute of either a written agreement, or by facts that would classify the work as one "for hire." Under the copyright statute, a work is "for hire" if it meets either of the following:

"(1) a work prepared by an employee within the scope of his or her employment; or

(2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire."

Your situation does not appear to meet these tests.

A little extra light might be shed by the Supreme Court's discussion in CCNV v. Reid, of when an author is an employee for pruposes of this doctrine:

In determining whether a hired party is an employee under the general common law of agency, we consider the hiring party's right to control the manner and means by which the product is accomplished. Among the other factors relevant to this inquiry are the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party's discretion over when and how long to work; the method of payment; the hired party's role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party.

You should be aware that any unauthorized copying of the photographs by you could be actionable infringement.