Using photo taken while employed for personal portfolio

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  • I’m starting my own business which includes taking photos of wineries. Unfortunately, the only winery photos I have to use in my portfolio were taken while I was employed at a winery (I was there for a year and a half and it was during my time there I discovered my love of photography and wineries) and it’s the wrong time of year to take any others.

    Since these photo’s were taken during company time using company equipment, do I have any rights as the photographer to display them in my portfolio if the company doesn’t want me to -- even if I clearly display ‘Property of ####’ on all the photos? (I was not initially hired to be a photographer (it’s just something I fell into) so I never signed any contracts regarding photography.)
  • If you didn't sign a contract beforehand, and if you were taking this pictures as part of your employment, then it's likely that your use falls under work-for-hire and therefore the company would own the pictures you took. The lack of a contract means that there could be contention about that, though, so you may want to speak to a lawyer. Giving them attribution (propert of ####) does not give you any additional rights to use the work. If you can get permission to use them, that would probably be the best thing to do.

    Now, if you do not have permission and cannot get permission, your next best recourse is to use an exemption to copyright. Take a look at the four factors of fair use. (Here are my thoughts on your use...)

    1) Purpose of the use. You plan to use the work on your portfolio. This may weigh against you since there may be commercial gain involved.
    2) Nature of the work. Creative, so weights against you.
    3) Amount of work copied. The entire picture, so weights against you- unless you are making smaller or altered images available. That might help your argument.
    4) Effect on the market. Here's an important one to look at- how are you distributing the pictures? Are you posting them online? Are you only showing them to potential employers?

    In this case, I'd actually look at the fourth factor very carefully. How would your use of the pictures affect what the owner is doing with the pictures? How many people would see your pictures? Could your pictures act as a substitute for the original images (a bad thing for fair use)?
  • Thank you so much for your well though out response -- you have definitly given me some things to think about!

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