IP Law Daily Volunteer photographer owned pictures taken of nonprofit’s D.C. trip
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Monday, November 16, 2020

Volunteer photographer owned pictures taken of nonprofit’s D.C. trip

By Thomas Long, J.D.

The photographer did not transfer rights to the photos to the organization or its members, and the photos did not constitute "works for hire."

A volunteer photographer who took photographs during a nonprofit organization’s trip to Washington, D.C., owned the copyright in the photos, and not the organization or any of its members, the federal district court in Pittsburgh has ruled. There was no written agreement transferring the photographer’s ownership of the images, and the photos were not "works for hire" for purposes of Section 201(b) of the Copyright Act. At most, the photographer served as an unpaid independent contractor who retained control over his photography choices, did not receive compensation from the nonprofit organization, and was not provided equipment or supplies by the organization. In a dispute over the organization’s alleged infringement of some of the photos, the court granted the photographer’s declaratory judgment action and concluded that he retained ownership of the images (Hubay v. Mendez, November 13, 2020, Ranjan, J.).

Parties. All of the individual parties were U.S. military veterans who served honorably, and all became activists against sexual violence in the military after they were discharged. In June 2018, defendant Janelle Marina Mendez founded Military Sexual Trauma Movement (MSTM), a nonprofit entity that focuses on lobbying elected officials to enact policies protecting survivors of sexual trauma and other forms of discrimination in the military. Defendant Pamela Heal was MSTM’s Executive Director of Civic Engagement and a director of the organization. Plaintiffs Deidra Hubay, Jessica Dorantes, and Alexis Gabrielle Herrick were former MSTM members who held positions on its Senior Leadership Team at all times relevant to the litigation. Plaintiff Robert Losieniecki was Deidra Hubay’s husband.

Works at issue. During a trip MSTM took to Washington, D.C., in September 2019, Losieniecki took over 1,300 photographs of MSTM’s various activities. During that trip, a conflict arose among the group members regarding a protest conducted by Mendez outside the Marine Corps Commandant’s home, and Hubay, Dorantes, and Herrick resigned from the group. The plaintiffs alleged that the defendants infringed Losieniecki’s copyright in 26 of his photos by posting them on Instagram, Facebook, and MSTM’s website, as well as using them in an email sent by Mendez.

Losieniecki did not enter into any written agreement with MSTM concerning the provision of photography services or the transfer of the rights to the photos to MSTM. According to the court, Losieniecki likely would have permitted MSTM to use the pictures if not for the dispute over Mendez’s protest action. The court based this view on an excuse letter Losieniecki submitted to his school stating that he would be the group’s "photographer on duty" during the trip. The court discredited Losieniecki’s testimony that he took the photos solely for his and his wife’s private use, finding that his actions on the trip with more consistent with serving in the role of photographer. The defendants’ testimony that Losieniecki had agreed, at least informally, to serve as photographer and take pictures of the D.C. trip was "generally more plausible," the court said. In addition, Mendez testified that the defendants provided input and instructions as to the subjects and compositions of Losieniecki’s photos. However, Losieniecki was not paid or compensated, and MSTM did not provide Losieniecki with employment benefits. The D.C. trip marked Losieniecki’s first significant volunteer role with MSTM.

Copyright ownership. Prior to the commencement of the lawsuit, both Losieniecki and Mendez (on behalf of MSTM) filed and obtained competing copyright registrations asserting ownership of the disputed photos. The issue before the court was which party owned the photos—Losieniecki or Mendez/MSTM—and which registration remained valid. Because it was undisputed that Losieniecki was the "author" of the photos, ownership vested initially in him, and he was the presumptive holder of any copyright.

Works for hire. However, the defendants asserted that MSTM owned the photographs under a "work for hire" arrangement. Although the defendants admitted that Losieniecki was not an employee in the traditional sense of the word, they argued that the Copyright Act’s use of the term "employment" was expansive enough to cover volunteers. They contended that the factors identified by the U.S. Supreme Court in Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730 (1989), suggested that Losieniecki was an MSTM employee for copyright purposes. The court disagreed, stating first that the Reid factors were inapplicable because Losieniecki was not a "hired party" under traditional agency-law principles. In the court’s view, the Reid factors depended on conventional principles of the "master-servant relationship" as understood by the common-law agency doctrine. Under those principles, the concept of "hiring" required remuneration for the person hired. Therefore, the court said, the Reid factors cannot be the basis for a preliminary work-for-hire inquiry in a situation involving a volunteer who did not receive remuneration analogous to that paid to an employee.

Second, even if the Reid factors for evaluating the existence of a "work for hire" applied to this case, the facts indicated that Losieniecki acted more like an "independent contractor" than an "employee." Thus, in the absence of an agreement in writing to designate Losieniecki’s photos as works made for hire, there was no legal basis for the court to attribute authorship of the photos to MSTM. Losieniecki was generally free to take pictures as he wished, and MSTM and Mendez exercised at most some informal authority in asking Losieniecki to take certain photos. Losieniecki used photography equipment and supplies owned by his wife. Losieniecki took pictures for MSTM for only two days, and there was no suggestion that MSTM had any authority to ask him to take photos at future events. There was no indication that MSTM treated Losieniecki as an employee for tax purposes.

Accordingly, the court entered declaratory judgment in favor of Losieniecki, and against Mendez and MSTM, as to Losieniecki’s exclusive right of ownership of the photographs taken at the D.C. event, including the 26 at issue in the infringement dispute. The registration obtained by Mendez on behalf of MSTM was deemed invalid.

This case is No. 2:19-cv-01327-NR.

Attorneys: David G. Oberdick (Meyer, Unkovic & Scott LLP) for Deidra Hubay and Robert Losieniecki. Brian J. Sommer (Dornish Law Offices) and Robert G. Androsiglio (Monarch Law Group) for Military Sexual Trauma Movement.

Companies: Military Sexual Trauma Movement

MainStory: TopStory Copyright GCNNews PennsylvaniaNews

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