Employee Rights / Contractor Question ..

tracywillor · 03-21-2012, 05:15 PM

Hey all - I have a question about my rights as a designer working for a small business part-time. I'm currently employed at 20+ hours a week at a small publishing company. I'm on the books, get a weekly check with taxes taken out, etc. I don't receive any benefits from this employer (other than the taxes being deducted/paid from my weekly check), I supply all of my own equipment, computer, software, etc, - which I pack up and bring in to the office with me on the days that I work. Furthermore, I make my own hours/schedule, and am the sole designer for the company.
So .... We recently put together a book which I designed the cover & art work for. There are very few images - little work involved in the creative process of the inside images, more work involved in the cover design. My employer came to me recently to let me know that the Taiwanese want to buy the book - and it turns out, technically, they have to buy the images outright from me because I 'own them'. This is because I never signed a contract with this employer signing over all the rights to whatever design work I do for them. I will be receiving a check soon for $500, which I am happy to have. HOWever, now that this is out on the table, my employer wants me to sign a contract so that from now on they won't have to go through all of these steps. I guess my question is, what are my rights in this situation? Wouldn't I lose out on an extra 500 bucks every now & then?? And given that I provide all of my own equipment (and then some) .. should I be considered an Independent Contractor and go off the books? What is the best position for me to take working for this company given all of these details?
I'm also friends with the person who employs me - so I want to be sensitive to the subject when we sit down to talk about this.
Any advice would be greatly appreciated. Thanks

**KitchWitch** · 03-21-2012, 05:42 PM

I didn't sign any contract with my current employer, but since they pay me to do design work for them, what I create belongs to them. Maybe I don't understand the details of it, I'm sure someone can point them out. But I would assume your work belongs to the company you work for, contract or no.

Squawky · 03-21-2012, 06:29 PM

Well, the issue isn't the design work, it's the photos. Whoever takes the photo owns the copyright and for someone to use it they generally have to pay usage rights to whoever "owns" it. SO... I'm not sure.

Maybe you need to have an added fee for when you provide photography, or charge a bit more per hour if they don't want to divide all this up and they assume full copyright (or maybe just usage rights) on any photos created with the design process.

I'm going to be entering this realm soon as I'll be going from a full-time employee to part-time/contract and I take a lot of photos in addition to design work.

**KitchWitch** · 03-21-2012, 06:32 PM

Ah, okay, I didn't make the distinction to photography when the OP said images.

tracywillor · 03-21-2012, 06:43 PM

Thanks for the responses so far. I guess I'm also curious about the Independent Contractor vs Employee part of the question. Does anyone have any feedback regarding that - given the details I listed above?

Squawky · 03-21-2012, 06:53 PM

*Disclaimer: I am not a lawyer*

I think the difference between an employee and an independent contractor are that anything that employee creates belongs to the company (that includes all copyright for creative pieces like design work, illustration, or photography) an independent contractor owns the copyright unless you sign some sort of agreement with the company you're doing work for (as in you can't sell this work to someone else once you're done creating it for the company that hired you).

If you don't have an agreement like this already signed and they want one I would definitely point out that you no longer have the ability to use what you've created to generate future income from other customers and need to be properly compensated. OR things continue as they were and are dealt with on the occassional basis where you get extra compensation.

**KitchWitch** · 03-21-2012, 06:56 PM

I think where I'm getting confused is you seem to be thinking you are an employee and an independent contractor at the same time (maybe I'm misreading). I think you are one or the other. If you are on a company's payroll, you are an employee and what you create - including photos you take for company purposes - belong to the company. I think that in earning a paycheck and getting compensated for the images you actually got double paid for your work.

*Also not a lawyer.

PrintDriver · 03-21-2012, 07:16 PM

*not a lawyer either
Where I work, if I take photos on company time or do illustration or design something, it belongs to the company.

If I have a photo in my morgue that could be useful in a design, that's entirely different. I own that. They would pay me for usage and they wouldn't get to own it.

tracywillor · 03-21-2012, 07:21 PM

I am currently an employee .. and I'm wondering if I should be an Independent Contractor instead. I make my own schedule, am the sole designer for the company, and provide all of my own equipment: Computer, software, etc. I literally pack up and bring all of these things to work each day - they are not provided for me. I also do not receive ANY benefits - i.e. Health Insurance, etc.
I'm not so stuck on the image rights of this question any more. I think I get that part. I am more focused on what I deserve as an employee, and if I should consider becoming a contractor with them. I would get more money in my paychecks if I did this - but would also be responsible for paying my own taxes ...

MadAmanda · 03-21-2012, 07:35 PM

I can only tell you from my own experience as an independent contractor. I was a medical transcriptionist for many years and received a 1099. I think it's more beneficial to be an employee because an employer pays part of your taxes. If you are an independent contractor and receive a 1099, you are responsible for the self employment tax of like 15%. I don't know where you are but this is a federal tax I think. But if you are an independent contractor, you can ask for more to cover this. I just think a 1099 is a hassle at tax time.