I received an interesting question concerning the ownership of photos taken by on-duty firefighters and thought the subject was worth discussing here in Fire Law Blog. The question: who legally owns a photo taken by an on-duty firefighter, the firefighter or the fire department?
When we talk about the ownership of photos, we are really talking about Copyright Law! Copyright protections apply to any original work of authorship/art and that includes photos, videos and digital imagery. The general rule is that a person who takes a photo owns the copyright UNLESS the photo was taken as a “work made for hire”, or in other words unless the photo was taken under the order of, or commissioned by, another person.
In the case of a photographer who is an independent contractor, the photographer owns the copyright unless he/she agrees otherwise in writing. In an employer-employee context (the typical firefighter scenario), the law is a bit more complicated. The general rule is that a photo taken by an employee within the scope of his or her employment belongs to the employer. When it comes to firefighters, the million dollar question is: is photo taking within the scope of the firefighter’s employment?
Because copyright law does not define “scope of employment”, courts have to make their own determinations about whether or not a particular photo was taken within the scope of employment. Things that will bear on the scope of employment decision are job descriptions, rules and regulations, employee handbooks, past practices, contractual provisions – and of course policies and procedures. In the public sector, laws may also play a role in defining the scope of employment.
In the absence of a clear policy on photos and digital imagery, it is possible for someone such as a fire investigator or safety officer who takes a photo, to be acting within the scope of his/her employment, while a firefighter standing next to him taking a photo of the same thing to be acting outside the scope of employment.
To address these types of concerns fire departments need to have a formal photo and digital imagery policy. All you have to do is check out www.youcantmakethisstuffup.net to see the other reasons why having a policy is a good idea. The copyright question is one in a long line of reasons why its better to clarify the issue through a policy!!
There will be a full discussion of this topic in an upcoming issue of Firehouse Magazine. This review barely scratches the surface of the issues. For those interested, the Copyright Office has a brief but informative circular on work made for hire. Download CopyrightCirc09
There is also a very interesting case arising out of the Oklahoma City Bombing that addresses scope of employment in the context of a gas company employee who took some photos at the scene. The Firehouse article will cover the case in detail.
My original thought was to simply create an SOP that covers taking photos while on duty but the more I read the more I became unsure of this simplistic stance. I look forward to seeing the article and finding out how this turns out. Regardless I get the feeling this needs to be addressed in the same way social media sites need to be addressed, before an issue is raised.
Shane
A FD photo policy is going to require quite a bit of customization. It is not a one size fits all situation. Some FDs may choose to allow personnel to use their own cameras, and we can write a policy to cover that and still protect the FD concerns. Some FDs may prohibit use of personal cameras but issue each apparatus an inexpensive digital camera. It is really up to the individual FD. In the process of drafting the policy, ownership of the images should be addressed.
The Murrah bombing photo case seems obvious-on company time, with a company camera, development of the photos paid for by the company. It would seem that it would be a far different case had it been his own camera/film/and development cost.
My dept policy (not in writing) is that no pictures are allowed to be taken at an emergency scene by dept members other than the training officer, a chief, or the fire investigators. It has nothing to do with legal concerns, but that you may be ignoring or delaying your assignment by taking photos. Those who formed the policy also believed it inappropriate for firefighters to be seen taking photos by the public.
Now we have almost no photos of any of our fires. It’s tough to fight the budget cutters without evidence of the work we do.
John
I agree – the photographer in the Murrah bombing case was clearly acting within the scope of employment. There are few cases out there – and none involving firefighters that I can find.
I agree that using his own equipment would be a factor, but his job description included taking photos. I think even if he used his own camera – it may still be within the scope.
You raise an interesting question – with regard to FDs that prohibit personnel from taking photos. One could make the argument that any photo taken by a firefighter in such a FD must be outside the scope of employment. The rule that prohibits photo taking essentially defines what the scope of employment is, and photo taking is outside the scope!
For everyone’s sake and sanity – photo policies should address ownership/copyright issues. A simple statement saying all photos taken by on duty personnel shall be considered to be “work made for hire” under the Copyright Act, and that the fire department owns the copyright to all photos taken – should be adequate.
Curt.
Can you clarify this situation for me. Until recently I volunteered with a rural fire department. I have been their PR person for over a year. I shared the photos with the media. When I first was asked to do this, it was understood that the photos I took were mine. There is not now, nor has there ever been a written policy. It has ALL been verbal. We have had a change in chiefs and the new chief wants full copyright of all photos. Yes, I have accessed the scenes because of my affiliation with the department. However, I have used ALL of my own equipment including my own vehicle to transport myself to and from the scenes. Even though I have shared my work with the media, I have NEVER sold it to them. I have offered the fire department a limited shared ownership of those photos, however they are claiming full ownership. The future photos are not the issue. However, the past photos, I still believe that I have full copyright ownership of these photos. They however are stating that because I was acting under the fire department that THEY in fact own these photos.
Cathy
GREAT question. The answer is important and I am willing to research it a bit – so give me a few days. Also – rather than bury the answer here I will post it as a Burning Question.
Thank you