Alex Cooke, FStoppers ; He Shot an Iconic Photo—and Lost the Copyright
"Lester LaRue shot 44 frames on the morning of April 19, 1995, with his employer's camera, his employer's film, and his employer's car to get him there. One of those frames ran on the cover of Newsweek's May 1 issue. A federal court later ruled the copyrights had never been his...
What This Means for the Camera in Your Bag
If you draw a paycheck and you take pictures, this is the case to read. The doctrine does not weigh how good the photograph is, or whether your employer could ever have imagined it, and it does not require the picture to depict the business. The test comes out of agency law and asks three things: whether the work was the kind you were employed to perform, whether it happened substantially within the time and space your job authorized, and whether you were acting at least partly to serve your employer. Whose camera you were holding is evidence going to those questions, not a fourth question. LaRue lost because every one of the three pointed the same way, and staff shooters, in-house content producers, safety officers, and real estate agents lose the same way every year without a Newsweek cover to show for it.
Section 201(b) leaves one lever, the written instrument. Ownership between an employee and an employer can be reallocated, but only in a signed writing, and the practical time to get one is before anything happens in front of the lens. The Copyright Office's own guidance for photographers is blunt about the same point, and if you are building a business around images you expect to license later, the contract side deserves as much attention as the business of commercial photography itself. Freelancers get the better end of this: under Section 101, a commissioned photograph is a work made for hire only in narrow enumerated categories, and only with a signed agreement.
The publicity half of the case cuts the other direction, and it travels badly. Oklahoma tied its statute to what the naked eye can determine from the photograph alone, so an obscured face defeated the claim no matter what the caption said. Other states draw the line differently, and identifiability standards vary enough that a shot that is safe in one jurisdiction is exposure in another."
