Dear Rich: Nolo’s Patent, Copyright & Trademark Blog

Your Question. Right. If someone is commissioned to create a contribution for an audiovisual work (a movie, video, etc.) then that would qualify as a work made for hire under copyright law. And if you want to list your company as the "author," you'll have that option under the work made for hire arrangement. Our employer (insert FTC disclaimer here) sells books that include work made for hire agreements. You can probably fashion one yourself as long as you include the following provision:

Do you need to register a patent, copyright or trademark before assigning it? Just to be clear, we're only talking about copyrights. No registration is required for the work made for hire agreement or for an assignment of copyright. A registration isn't necessary for assigning a trademark, either. You would need to have acquired a patent before assigning it since patents (unlike copyrights and trademarks) don't exist until the government says, 'Okay!' You can, however, assign a patent application or the underlying technology rights. That's enough blah blah blah for today, the Dear Rich Staff has got to go get melancholy with Frank.

Work for Hire? As we mentioned in a previous blog entry, if the blog is not something you would create in the course of your employment and you created it on your own time, using your own equipment, then you own it under work made for hire rules. But if you got paid for doing it (wrote it during work time), or used work equipment and it was related to work (sounds like it was since you're talking about your 'industry') then your employer owns the blog. For example, even though I'm writing this miles from Berkeley and on my own computer, my employer owns these words. Some other factors that may matter are whether you signed an employment agreement discussing ownership of employee works, or whether your employee handbook at work has rules regarding employee-created works.

Trademark and Domain Name Issues. Regardless of the copyright rules expressed above, you're free to start another blog at your new job, provided you're not taking and using any trade secrets from your last job. The Dear Rich Staff believes that the bigger question is whether you can take the blog name (your trademark) and the domain name (The URL or address of your blog). If readers associate the blog with your employer -- for example, they access it at your employer's website -- then it's likely your employer will claim ownership of the name unless there is some alternative agreement between you and your boss. For example, you could work out a deal where you owned the name of the blog but licensed it to your employer during the course of your employment. If the domain is part of a free blogging service such as Blogger, then things become more confusing and there may be battle over who has rights to use the Blogger URL.

To learn more about online trademark law, check out Stephen Fishman's book A Legal Guide to Web & Software Development.

As we mentioned in a previous entry, we would also need to know the contents of your employee handbook or employment contract. In any case, the Dear Rich staff thinks you have a reasonable argument to claim copyright ownership but that it is probably a close call, primarily because the photographs were taken on company time, at the company's facility, and with contributions from the company - they hired the models and apparently supervised the shoot. We're also concerned about that bonus you discussed. If it was negotiated as separate payment for the work, then that could influence your ownership claim. As for what would other photographers charge for similar services, the best answer can be found by checking pricing rates at other photographer's websites, or using one of the popular books or  pricing tools. (P.S. Although I am not, as you state, a professional photographer, some of my best friends are, and their work decorates my office.)