Am I legally allowed to use these photos I took?

[Ett]

How's it guys,

Okay, so here's the deal:

I worked for another wedding photographer as an assistant for a while. It wasn't a full employment, though. When he needed me, I'd go and help, and he'd pay me. While working for him, I told him that I wanted to shoot as well (with my own camera, of course), at times when he didn't need me to help him with anything. He told me that that was fine. We never signed any papers about this, though.

Months later, and I no longer work for this guy. The way we parted ways was also quite nasty, as he refused to pay me a few grand that he owes me. He still hasn't actually. Part of what he said to me when that relationship ended was that I wasn't allowed to use the photos that I took for my own portfolio.

Now I'm not really sure what I'm LEGALLY allowed to do here. I took those shots, and I took them with my own camera, so surely I own the copyright to those photos, right? I never signed those photos over to him.

So am I legally allowed to use them?

Thanks guys!

[MattG]

I don't think this is that straightforward. There are some variables at play that may have an impact upon whether you can use these images in a portfolio for commercial purposes, i.e. to promote your services as a photographer. All this may change if using the images for private purposes (as you don't have a contract with the main photographer).

1. The likelihood is that there is a contract between the wedding parties and the main photographer. This should cover their use of the images including for commercial purposes but will not cover your use (i.e. the model release may/will not apply to your use of the images).

2. Your arrangement with the photographer is ambiguous. If you were hired to work for time based arrangements with duties other than as a photographer, then there may be legal coverage for the fact that anything you create within that employed time is the property (including copyright possibly) of the contracted photographer. A lot depends upon local law and interpretation, even without an official contract.

3. The venues may have restrictions that you do not comply with which may expose the main photographer (in Australia we have to apply for commercial use permits in some venues such as Parks, etc. and also some venues may impose conditions) and this may impact the usage of the image.

In short, the only proper advice we can give is to speak to a lawyer - for advice on both recovery of monies and use of images. Good luck and let us know how you get on.

[ArmySoldier777]

Originally Posted by MattG

A lot depends upon local law and interpretation, even without an official contract.

+1 to that. For instance, I spoke with a couple lawyers here in my state about using pictures for a portfolio without model releases. Turns out that in NC in the US, I can use pictures of anybody on public property for my portfolio, whether I have a model release from them or not. This includes selling the images for profit. That being said, they also recommended that if it came down to me wanting to sell a photo, that I'd be better off getting a model release anyway just to make sure all my bases were covered. In my case, it's not needed, but it can be used as another layer of protection.

That can differ from state to state, and I'm sure it definitely changes from country to country. So the best thing for you to do is speak to a local lawyer.

[jdepould]

First thing you need to ask yourself is this: are the photos good enough to be worth the trouble?

Having gone through this experience, you now know the value of having a contract, regardless of your role.

It's highly unlikely that a court would consider your case "work for hire." That is a very specific situation that generally applies only to W-2 employees, or if it's explicitly stated in the contract. In English, this means the photographer you were working with probably can't prevent you from using the images as work samples. That doesn't mean he can't try. Anybody can file a lawsuit for pretty much anything, if they can find a lawyer willing to take the case, or know enough to bring the action themselves.

[continuumphotography]

I'm a full time wedding photographer in the US. The copyright laws in South Africa may be different. In the US without a signed contract between you and the primary photographer, you'd technically be allowed to use the images. The major factor to consider would be this other photographer's standing within your local wedding photography community. It's definitely a big no-no amongst wedding photographers for a second shooter to use any of the images without the permission of the primary. It could be the difference between getting future second shooting jobs and referrals from other photographers. Something to consider.

[andyw]

Copyright law in SA is based on and very similar to British copyright law.

As such there are a couple of things you need to be aware of.
1. employment. If you were employed to take pictures for a company then the company owns the copyright and not the photographer. Unless agreed otherwise.
This is from the SA copyright law "where a work is made in the course of the creator’s or author’s employment by another person under a contract of service or apprenticeship, that other person is the owner of any copyright subsisting in the work;

2. In the UK that above clause would mean actual employment rather than a "contract for service" which would be a freelancer.
Subtle difference is contract FOR or contract OF service.

3. personal and private commissions. Weddings come under this clause in UK copyright and means that any shots which were commissioned for personal or private use (i,e, weddings or portraits) CANNOT be used by the photographer without the express permission of the commissioning agent (the client). This is why all decent portrait/wedding snappers have written into their terms that they can be used by the photographer for display/portfolios etc.

So you have a number of issues to sort out.
Did you have a written contract with the photographer in the first place in which you kept copyright?
Did you have a separate contract with the clients?

IF the answer to the first is yes, then you can use the images BUT that depends on the answer to the second question. If it is yes then you can use them. If it is no then you can't.

If the photographer you were working for did not have a contract with you then he/she is a grade A fool anyway.

Is it really worth it to you to fight this one?

[Jim Poor]

Well, if it was a work for hire, but he didn't pay you. You might be able to use them anyway. I have no idea about the laws outside the US though.