Each state has its own laws regarding how an employer-employee relationship is created in relation to a situation where an independent contractor relationship is created. As a general rule, however, the fact that a person is referred to as an “employee” or “independent contractor” or has a contract has no legal significance. Instead, the courts will examine the nature of the relationship rather than relying on the nomenclature used by the parties. A work may be considered a work for rent if a photographer is acting as an employee or as an independent contractor, but there are differences depending on the type of employment relationship. Therefore, before describing the differences in its application, it is important to understand the difference between an independent contractor and an employee from a legal point of view. A photograph may also be a work made for rent if the parties sign a written contract designating it as such, and if it is specifically commissioned or commissioned for use in connection with a collective work, compilation, film or other category specified by law. [1] As you know, copyright grants photographers and other authors of works a number of exclusive rights. The exclusive rights granted to a creator of a work under copyright law are: the right to make and sell copies of the work, the right to perform and display copies of the work, and the right to create derivative works. Each of them can be its own essay, but remember now: you own a copyright on the images you take from the second you press the shutter button. You don`t have to do anything else to make it happen. If the photographer`s work is not considered a “rental work” or you do not want to classify it as such, the only way for a company to own the copyright in the photos is for the photographer to expressly assign the copyright to the company.
An assignment is a permanent transfer of copyright. Copyright consists of a set of rights (for example. B reproduction and distribution rights). A copyright holder may transfer all or part of those rights. As a rule, in such a situation, all rights are transferred. Photos taken for use on a website can fall into one of the three categories above, but the first two are probably the most appropriate. For example, photos on a website are meant to illustrate product text and descriptions, making it a complementary work. Or they could be seen as part of a larger collective work. To work around this problem, a company can and should obtain an exclusive license for copyright. This gives the company the opportunity to exploit the work at will and prevent other people, including the photographer, from using the work. It also gives the company the ability to register copyright and prosecute any infringers.
As a rule, however, there is a clause that allows the photographer to use the photos for marketing purposes (for example.B. in his portfolio). The Entrepreneur hereby irrevocably assigns to the Company the Contractor`s worldwide rights, title and interest in and to the Work, as well as all intellectual property and proprietary rights therein, including all copyrights, moral rights, contractual and license rights in and to the Work, as well as all existing claims, demands and/or causes of action, current and future regarding the User`s Property and/or the Infringement of the Work. However, if the photographer is acting as an independent contractor, a work is only a commissioned work if (1) there is a written agreement between the parties stating that the work is a commissioned work, (2) the agreement is signed by both parties, and (3) the work falls into one of the following nine categories: Courts often use a number of factors to determine the type of relationship that ends, the most important factor is generally the degree of control that the principal exercises over the agent. The more instructions the client can instruct the photographer on what to do and how to do it, the more likely it is that a court will determine that it is in fact an employee! The courts will also consider other factors, including where the photographer performs his work and the equipment he uses. An example of a “work for remuneration” clause might look like this: Alternatively, an independent contractor contract that expressly reserves copyright to the photographer or does not say who owns those rights ensures that the photographer retains the usual exclusive copyright. Thus, photographers can protect themselves first and foremost when entering into an independent contractor relationship, and the first place a photographer should determine their rights is the contract. If a work is considered a temporary work, this is usually a bad thing for a photographer as it causes them to lose their personal copyright in their work. .