Who Owns The Photo: the Firefighter or the Fire Department

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.