Are All Photographers, Videographers, Shooters & Directors Employees ?

cropped-ablOne of the most used agreements in California for adult content production is the standard “Work for Hire Agreement.” It is basically an agreement that assigns the copyright of the photographs, videos or clips captured during a scene to the company or studio that has paid to produce the content.

Note: If you are not having your photographers, videographers, shooter and/or directors sign a work for hire agreement for each and every photograph and video, then you probably don’t own your content. And you might want to check with your attorney about this or hire one to review your situation before its too late. This situation is more common that people believe.

Under U.S. Copyright law, the person who captures the content is the actual copyright owner, not the person who pays for the content. In more legal terms;

A copyright is a legal device that gives the creator of a literary, artistic, musical, or other creative work the sole right to publish and sell that work. Copyright owners have the right to control the reproduction of their work, including the right to receive payment for that reproduction. An author may grant (assign) or sell those rights to others, including publishers or recording companies.

Notice the word “creator” that I placed in bold and italicized ? The creator is the person who captures and fixes the images onto a photograph or video recording, not the person who paid the performers to perform. In order for companies or studios to gain those copyrights from the creators so that they can distribute the content – a work for hire agreement is used. Once the creator has a signed work for hire, the studio can sell the content or post the photographs, videos or clips to whatever website they want or distribute them via DVD, broadcast or cable. Without a signed work for hire, then the studio or company only has a oral license (agreement) to use the content which can be revoked at any time by the creator, in writing, even after the content has been sold and distributed. This would create a nightmare of epic proportions though.

A work for hire agreement is one way for the studio to own the copyright to the content. The other way is to make your photographer, videographer and/or director an actual employee of the studio. Then everything that they do is owned by the studio under the legal theory of master-servant. Generally, if someone is your employee then you own all of their inventions and creations, including copyrights. However, in order to call them an employee, they must be on payroll AND you must pay employment taxes on that person’s earnings. You cannot just pay them a flat day rate.

Most studios and companies do not pay payroll taxes on their creators. Most get the creators to sign a work for hire. And there is the problem that few in California now know about.

In 2012, the California Legislature passed Labor Code section 3351.5(c) which states;

3351.5. Employee includes:

(a) Any person whose employment training is arranged by the State Department of Rehabilitation with any employer. Such person shall be deemed an employee of such employer for workers compensation purposes; provided that, the department shall bear the full amount of any additional workers compensation insurance premium expense incurred by the employer due to the provisions of this section.

(b) Any person defined in subdivision (d) of Section 3351 who performs domestic service comprising in-home supportive services under Article 7 (commencing with Section 12300), Chapter 3, Part 3, Division 9 of the Welfare and Institutions Code. For purposes of Section 3352, such person shall be deemed an employee of the recipient of such services for workers compensation purposes if the state or county makes or provides for direct payment to such person or to the recipient of in-home supportive services for the purchase of services, subject to the provisions of Section 12302.2 of the Welfare and Institutions Code.

(c) Any person while engaged by contract for the creation of a specially ordered or commissioned work of authorship in which the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire, as defined in Section 101 of Title 17 of the United States Code, and the ordering or commissioning party obtains ownership of all the rights comprised in the copyright in the work.

Which means that in California, if you have a creator sign a work for hire agreement, they are now legally and automatically classified as employees for unemployment benefits and workers’ compensation benefits. It doesn’t matter what the studio or even the creator want to classify themselves as. This law overrides any private agreement.

If those creators want to file for unemployment benefits, under California Labor Code section 3351.5(c) – they can. If they are injured on set and file for workers’ compensation benefits, the studios and companies can no longer claim they were independent contractors and not entitled to benefits.

Many adult producers, large and small, ignore issues surrounding employment law and how those laws interact and can change their understanding of intellectual property law. It is vital to understand the specific employment laws of your jurisdiction if you happen to produce outside of California. Other states may have adopted a similar approach to copyright and employment law.

You should also talk to your Certified Public Accountant about this issue since employment and payroll taxes are involved. Failure to pay payroll taxes can result in fines, penalties and in extreme cases – imprisonment.

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