Photographer and Freelance work

HRinGA

We are in the publishing industry and have quite a few photographers on staff. They are hourly. Many of them do freelance stuff (weddings, etc). and that is no problem. However, we got a call from a realty company wanting to purchase photos from one of our magazines. In the process of deciding whether or not we would sell (this is a rare occasion) the realtor called the photographer directly about the shot, or whether he had anything similar. The photographer makes the comment "you know, I took a lot of these shots on my own time...". So here's the dilemma:We give him an assigment. We now know he takes photos on own time, maybe 20 or so, and gives us the best ones. So what if he wants to sell others to the realtor? Are all the pix on the roll ours? If we sell the photo, can the photographer come back and demand payment also? What if he throws the "I was on my own time" line? He pretty much comes and goes on assignment all the time. We just pay the flat 40. Am I right in saying he should be tracking his hours? How would we know he took those shots on Sunday afternoon? We've never had a problem with any photographer on staff. They like to have their pictures published. I'm just worried about this one due to a third party entering the picture. Your thoughts?
PS. This is a long term, great employee.

Shadowfax

You pose some interesting questions, but this cannot be unique, there must be thousands in your industry faced with the same sort of dilemma. But, if you send a guy on an assingment, he gives you a pix to publish, why arn't all the rest of the pix taken on the asignment yours too. How could he be on his own time on your assignment? Maybe he should be an independant K/or, acept an assignment or not and be paid only if you buy his pix. Do you buy the film? Camera? Process all the shots? Seems more complicated than tracking time to me. Maybe you work out some share basis for sales of pix other than those published (presumably copywrited) in your publications. But I would start with the proposition his work product is yours if it comes in any way from your assignment.

Beave

"We just pay the flat 40"

What does the flat 40 get you? If it gets you the photographs you recieve and they are useing their own equipment and you don't pay for time & only pay for the product received, and the phogographer keeps the rest ...

Have you ever had this situation happen before? If so, how was it handled then?

HRinGA

no, we provide the equipment and all developing costs. I'm guessing this has happened before...it has to have! I'm just now receiving a phone call about it.
We sell photos out of our paper to the public all the time and they are taken by our photographers. The only catch with this is that he made the comment "taken on my own time". Where is he going with that? Why would he say that? I think he should just freelance for them and take the shot they want. The manager was the one who brought up the question of "what if he just gives him one from the roll he shot for us?" How would we know that? uugghh! I feel like I've spent way too much time on this already. Is my frustration showing?

Don D

I would argue that any picture he tried to market which was similar in anyway to the content of those in my magazine, would indeed be my work product. But, your question must be directed to an attorney.