gmichaelbeach Loc: Connecticut

Ditto

Tomcat5133 Loc: Gladwyne PA

Wow Bipod this is an amazing business analogy. OK I have owned many business in the creative field.
Well if you pay someone a 100 bucks for day as an assistant to see how it works are you now going to put
him or her on 1099. If you use a lot of stringers you can become a supermarket of accounting.

My company for 17 years was the main supplier for a big tech national sale meeting staging shows.
My contract was a clever short brief explanation of services and overages and out-of-pocket.
The shows were in the hundreds of thousands of dollars. My proposal and basics of agreement
were 25 pages in big print. Why would I do this . Number one if we made it complicated it would
have driven the client away. If I had to sue them their is no way I could ever beat their lawyers.
I knew and judged if the show was cancelled they would pay me the severance listed.

In this discussion of wedding photography and assistants this is small stuff. The money involved
is not enough to make it into a legal trial. If they client doesn't pay are you going to small claims
court? Walk on to your next wedding.

In the years I worked on everything from McDonald's to hi tech and fashion I only saw a couple
of suits to resolve legally. Was only not paid 3k from large chemical company that went into bankruptcy
I collected the big part of the payment.

If you expect an assistant or someone creative to play by the rules that is a personal judgment.
If they are sleazy they will take the samples and use them anyway. Look at the use of images today.
I run from legal and over complicated agreements and billed out a lot of income for years.
Common sense and personal judgment wins every time.

dsmeltz Loc: Philadelphia

No. The image (in the absence of an agreement stating differently) belongs to the person pressing the shutter release. They are the one composing the shot and taking the picture. Who owns the equipment is not relevant.

Bipod

I agree: suing customers is a bad idea. I never had to go to court either, in 25 years in business.
That's because I wrote very detailed agreeements and lived up to them.

But this is a special situation: a one time deal, not a "going concern". His goal is to make money
on this one deal.

In general, in any situation, there are three standards:
* What is legal and prudent
* What is legal
* What you might be able to get away with

While it may seem unlikely that, say, a wedding job, could become the subject of
major litigation, that changes in an instant if your employee steps in front of a
moving vehicle in the parking lot and ends up paralyzed from the neck down.
And guess what: the driver has no insurance and no money. But you, you have a
house and a business.

I sat on a jury for such a case (elderly woman hit by a shopping cart in a drugstore,
had a hip replacement and suffered complications). The drugstore was the defendent,
even though no employee had anything to do with the accident. (The defendent
prevailed, I'm happy to say.)

As a practical matter, he could pick up his assistant from the Home Depot parking lot,
pay him in cash, and probably get away with it. But once one starts putting things in
writing, one better make darn sure it's legal. Because you never know what may
land you in court, and you want to arrive there with "clean hands".

Tomcat5133 Loc: Gladwyne PA

I carry a basic gear and liability insurance for my business. I always did.
Their are crazy lawsuits but I dont now anyone or I have never experienced one of them.
As you can see in our government and corporate litigation seldom solves problems.
My daughter has tried to solve legal problems with her former husband for 6 years.
We had multiple lawyers and the court judge was total ineffective in resolving things
like healthcare for children and him knocking her front door down of her home.
I have spent money and so had she. A lot of money. She is in court next week again.

THE ANSWER TO THESE LAWSUITS MANY OF WHICH IS BOGUS ARE WHAT THEY DO
IN ENGLAND AND CANADA ETC. LOSER PAYS YOUR LEGAL BILLS. THAT WORKS.

Just a note to this good exchange It is really different today. I shoot sporting events
video and stills from video like Triathlons and Running Festival with 4000 people this past spring
People come up and want to give me comments all the time. They want to be involved.
What I am to do ask them to sign a release and give them a dollar?
I have been here in forums discussing shooting people in public places and working
in areas that might be a problem.
Common sense. I start filming and I ask "are you OK with my filming you about your
experience at this event". Great....
Yes they could come back on this when they see the video on the website and it promo.

I always show my natural friendliness and politeness. This will solve a lot to problems.
My daughter always said if you need a room in a hotel that is booked have dad call.

Bipod

The term work-for-hire is defined by statues (17 USC Sec. 101). An agreement alone is not enough, the work really
must have been created by an employee as part of his job, on one of the other ways set forth in the statute.

Copyright normally belongs to the author and is created by the act of authorship. But works-for-hire are an exception.
If the work falls into the legal definition of a work-for-hire, then copyright belongs to the employer/client.

A written agreement formalizing the relationship between the parites is a good idea. But agreements (except for the sale
of real estate -- Statute of Frauds) do not have to be in writing to be enforcable. Moreoer, most employees (except
executives or teachers) are hired without an employment contract, under employment-at-will. There may be side
agreements about confidentiality (NDA), or whatever.

Who owns the equipment doesn't affect copyright but does can be a one factor in deciding if someone is an employee or
an independent contractor. This is important because payroll taxes and other taxes, premiums and contributions that
the employer owes for an employee but not for a contractor. There is usually no problem if the contractor is an employee
of an agency, unless he stays for a long time or is given managerial duties. But independent contractor status can be
dicey.

Independent contractors are in the services buiness--an employer can't just arbitrarily decide to treat an employee as
a contractor. If that person doesn't meet the legal definition of an contractor, then the IRS, SSA, etc. may decide even a
couple years later that the person was really an employee -- in which case the employer owes. back payroll taxes,
employer's SSI contribution, worker's comp premiums, unemployment insurance premiums, plus penalties and interest.

It used to be easy to pass off employees as contractors. It isn't anymore. Some big companies (e.g., Microsoft) got nailed.
Sometimes the best you can do is make them a part-time employee. The best rule is to be honest about the nature of
the relationship, and pay the taxes you owe.

There are many books on employment law for small business: Nolo Press is one good publisher.

Tomcat5133 Loc: Gladwyne PA

Small businesses use help all the time. I am well aware of the IRS rules. Someone cleans snow from the front of your place 30 bucks? I know the rules of employment the person must show a pattern of employment. The IRS is so screwed up today they take an hour to
Answer the phone. And the more info you give them the more screwed up things get.
Talking with other biz people they get strange notices for payments payed a long time ago. The state I moved from PA could never explain when a sale was state taxable or not.
If you called you got a different answer. Like copywriting. A logo design. Travel reimbursed. Use common sense.