Copyright & College Papers
“If I take photos for a college paper (as a student, not an employee), do they own the copyright or do I?”
This is a popular question. Since you took the photograph, you own the copyright. They did not take the photo, and they did not “hire” you to take the photo, so they do not own the copyright.
The college paper is probably thinking of “work made for hire” but this does not apply since — as you’d be quick to point out — they did not hire you. “Hire” means, “using principles of general common law of agency, [that] the work was prepared by an employee” (see Community for Creative Non-Violence v. Reid, 1989). If you were not an employee (with full-time pay, equipment provided, benefits, taxes, the works), then you were not, in the legal sense, hired. No hire=no work made for hire. Instead, in the legal sense, you are considered to be an “independent contractor” which is NOT covered by “work made for hire.”
If they wanted the copyright, they should have either hired you full time, or got you to sign your copyright over to them in an explicit written document. If neither occurred, then you own the copyright.
You can point them to a landmark case which is pretty much on point — Community for Creative Non-Violence v. Reid, 1989. An organization was ruled NOT to own the copyright since they did not employ the photographer, partly since they “did not pay payroll or Social Security taxes, provide any employee benefits, or contribute to unemployment insurance or workers’ compensation funds.”
Defining an Employee
“To determine whether a work is for hire under the Act, a court first should ascertain, using principles of general common law of agency, whether the work was prepared by an employee or an independent contractor.”
“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