Employee v. Independent Contractor: Why It Matters
August 20, 2014 by Katherine Imp
“When I first started out, I didn’t know anything about copyright and I was working as an employee in a full-time position without a contract,” says Chicago filmmaker and photographer, Christian Seel. “Had I understood all the legal details of the situation, I may have made different decisions along the way.”
Christian is the former Media Director for the world-renowned restaurants Alinea, Next, and the Aviary. Christian’s work has appeared in The Wall Street Journal, New York Times, LA Times, GQ, Details, and Food and Wine. He now works for his own company, Seel Media LLC, and divides his time between Los Angeles and Chicago.
“No matter what career path you choose, there will be a steep learning curve,” says Christian. “Unfortunately for photographers and videographers, that learning curve can have lasting effects.”
Under a regular employer-employee relationship, the copyright in a work vests in the employer when the work is prepared by an employee within the scope of his or her employment. In other words, your employer has the unrestricted, worldwide right to use, license, or sell your work in any way it deems necessary, and can do so in perpetuity without additional payment or credit to you, the actual creator of the content. Independent Contractors, on the other hand, own all of their own content, even when hired and paid by someone else to create it. In this situation, the only way ownership will change hands is if the Independent Contractor agrees to give it away via a “Work-For-Hire” provision in his contract.
“Regardless of whether you’re an employee of independent contractor, it’s important to have a contract to make sure both parties are on the same page, and so that you know what you can and can’t do,” continued Christian. “If there is no contract, and you do work on the side, your employer could assume they own it.”
So how do you know whether you are working as an employee or independent contractor?
Well, there are a number of factors that a court would look at, but here are a few key factors to consider: (1) whether the employer has the right to control your work, (2) the degree of instruction given, (3) whether you are free to offer your services to other businesses, (4) whether your employer reimburses expenses and provides equipment, and, of course, (5) the method of payment. For example, if you are paid on a bi-weekly basis, you are more likely to be viewed as an employee than if you were merely paid in 1-2 installments. Other methods of payment such as health insurance, 401k plans, and worker’s compensation would also weigh in favor of employee status over independent contractor.
“As a photographer or videographer, your value is your work,” said Christian. “And though it’s not always possible, you want to hold on to ownership of your work whenever you can.”
Katherine (Kate) Imp is an entertainment attorney at Ramo Law PC and Chicago native. She specializes in film finance, production and distribution for clients in Illinois and across the country. Contact Kate at @KatherineImp or firstname.lastname@example.org.
Disclaimer: The information in this column is intended for general information purposes only and should not be construed as legal advice.