One of the most important copyright concepts for photographers is “work made for hire” and it’s one that many photographers do not fully understand.
A fundamental copyright principle is that copyright ownership originally belongs to the creator -- the person who fixes the work in tangible form. Generally, the person who clicks the camera shutter owns the initial copyright in the resulting photograph.
The major exception is if the photograph is a “work made for hire,” which can happen in two ways. First, if the person shooting the photograph is working within the scope of employment -- for example a newspaper’s employed staff photographer – the work will be a “work made for hire” owned by the corporation.
Second, a work may be a “work made for hire” if the photographer and the person ordering the work expressly agree in writing that that the photograph is a “work made for hire.” In such case, the photograph must also be “specially ordered or commissioned,” and must fit within one of the categories listed in Section 101 of the Copyright Act (a common category involving photographs is a contribution to a collective work such a magazine or newspaper). Because a court may find a work not to be a “work made for hire” even if that’s what the parties intended, a good “work made for hire” agreement will state that if the work is deemed not to be a “work made for hire,” the agreement will create an assignment of ownership from the photographer to the person ordering the work.
A trap may occur if a photographer does business through a corporation. In such case, the photographer must make sure that any copyright registration is consistent with how the business operates. For example, if a photographer takes “work made for hire” photographs as an employee of his/her corporation, the copyright registrations for such photos should indicate that the copyright is owned by the corporation. A court recently dismissed a photographer’s copyright infringement case because the copyright registration listed the photographer as owner when the work was a “work made for hire” and the corporation should have been listed. Morgan, Inc. v White Rock Distilleries, Inc., 230 F. Supp.2d 104 (D. Maine, 2002).
For more information on “work made for hire,” see United States Code, 17 United States Code Section 101, 201(b), Community for Creative Non-Violence v. Reid, 109 S.Ct. 2166, 490 US 730, 104 L.Ed.2d 811 (1989), and Copyright Circular 9.