Can my former employer sue me if I don't give them the photos I took (taking pictures was not part of my job description)?

Question

I was hired by a company to run demos and do merchandising for their product. Managers found out that I have experience as a photographer and asked me to run a photoshoot for them with the promise that, if they like the end result, that would become my responsibility. I thought this was an amazing way to grow at the company and accepted.

I took the pictures during my work hours, but I worked on the photos out of my work hours. A week later they let me go. Now I'm getting messages asking for the pictures and I think it is only fair that I get paid for them, since their promise fell through.

I texted back with my rates and they are talking about taking legal action because they "own" the photos. What is the right thing to do?

Just because of the threat e-mail, I immediately want to delete the pictures for good.

Answer 1

I am not a lawyer but generally speaking, here in the US any work done while on the clock (i.e. being paid by your employer) is the property of your employer: work-for-hire. Had you taken the pictures while not on the clock you would be considered the owner.

If the editing was done off the clock you're probably not under any legal obligation to provide your previous employer the edited photos; if you can provide the original un-edited photos. That editing and post-processing work was yours.

You should more than likely reset the RAW images (you do shoot RAW don't you?) to the default imported version and provide those to your employer. If they are already threatening legal action then I would deliver them via certified mail or some electronic means where you can prove that they have received them.

Answer 2

Once your employer asked you to run a photoshoot for them and you accepted, taking pictures perforce became part of your job description.

Since you took the photos as part of your job, the result is probably classed as "work for hire" for copyright purposes. Only a copyright lawyer can tell you for sure who owns the copyrights, but it's probably your ex-employer.

Since you have now been put on notice that the photos are wanted, and you have quoted a rate to provide them, it might be illegal (a malicious tort, I think) to delete the pictures for good.

If you are concerned about the ethics of your position, consider that you should have left at least the developed negatives behind when you were dismissed. By taking them away you removed company property.

Your ex-employer is probably not ethically nor legally entitled to the work you did on the pictures out of work hours. But check your employment contract.

Answer 3

On your employment being terminated, under most western legal systems, you would be obligated to return any physical property belonging to your employer that was in your possession, and if asked at or before the time you were dismissed, to transfer any data residing upon any of your own devices that would be considered to be work product to your employer. Regardless of whether your employer asked you for your electronic work products, you would typically be obligated to destroy any of their data residing on your devices upon your ceasing to be employed by them, unless they gave you explicit permission to retain said data.

So, if you don't want to give them the photos (or even if you do), you simply say, "You didn't ask me for them before I was fired, and I deleted them so that I wouldn't have your data on my equipment." If they argue or threaten, you just say "It was your data, you didn't ask me for it, and I had no right to retain it once my employment with you was terminated. If you had wanted it, you should have asked me for it before or at the time my employment was terminated."

If you are able to transfer the photos to your employer, and actually did so, subsequent to the termination of your employment, this could be considered evidence that you illegally retained possession of their data. If you have told them that you could send them the photos, but have not yet done so, I would advise informing them that you were mistaken, that you had actually deleted all of your work product owned by them upon being dismissed, and had simply forgotten that you had done so.

No judge could blame you for "protecting your former employer's interests" by deleting data that you no longer had a right to use or possess, that your employer had not asked you for while you were still employed or being off-boarded.

If they really want these photos, you could then tell them that the deleted photos may be recoverable, but they would have to pay you for your time and expense - in advance: get them a quote and add your own margin on top for your time and trouble - to have a data-recovery firm undelete them.

Answer 4

I am going to say no. If the JD had no mention of you being a photographer for the company, you did not consent to forfeit your intellectual property as a work for hire. There's been precedent where programmers in non-programming job positions were asked to perform programming roles. The court cases ended up siding with the employee and that companies had no expectation to receive the source code for job positions that were not explicitly stated as programming positions. I would guess because there would be a huge amount of wage suppression for employee. Since you weren't classed as having photography related job duties, the employer has no expectation to receive your work as they did not pay you at market wages as a professional photographer.

Answer 5

Your problem is solved when you find a virus on your system and have to wipe all disks clean, in all the stress you forgot to make backups of the data before the wipe. Or if you try to install some linux on one disk partition but accidentially overwrite the one where the images are stored.

Some answers claimed you won't get sued by a rational person. I witnessed already two irrational cases who didn't win, but both were forced by the judge to be settled or else, and they cost the other side large sums. And the irrational person got less money in the end that was offered to them voluntarily before they started suing. Some people just want to see the world burn ...

I would agree with the distinction of the raw and the processed images, but you might be forced to delete the processed images and/or they might be even property of the company, depending what your contract states about work products. Think there was an episode of Silicon Valley where they lost because the software was coded outside of working hours but on company machines. I think there could be even terms that say anything you produce during the time of employment.

Now anything you already claimed, like being able to deliver is a problem. You should really talk to a lawyer. It's a small fee and if there is a chance to get some money for the extra work, well invested. Or for the benefit of reducing risk.

You could also try calling their lawyer and verify that they sent the letter. Cheap people sometimes use an old lawyer letter they have and just add their own text. They usually get away with it because people are threatened by lawyer letters.

Good luck!

Answer 6

IANAL, but I think

1. The photographs belong to your employer.
2. Nonetheless you have no obligation to give them the photographs. It really depends on what you mean by "let go."
   1. If you are still collecting a severance then you probably do need to return them.
   2. But if you mean, "as of this moment you are fired ... here is your final paycheck ... get lost" then no, you do not need to give them the photographs. You do not need to do any unpaid work and returning photographs is work. This does not mean you "own the photographs" - you just are not obligated to take any special care with this property.

Answer 7

The commenters advising you to give in are talking nonsense. Nobody is going to sue you, because it would be impossible to prove that you still have the photos, after x amount of time has already elapsed after your termination. How are they supposed to prove that the photos weren't destroyed in say a flood?

Moreover, how can they just expect you to store the photos until they feel like they want them all of a sudden.

This is just bluster on their part. Don't give them anything.