Who Can Claim Copyright?Copyright protection subsists from the time the work is created in fixed form. The copyright in the work of authorship immediately becomes the property of the author who created the work. Only the author or those deriving their rights through the author can rightfully claim copyright.
In the case of works made for hire, the employer and not the employee is considered to be the author. Section 101 of the copyright law defines a “work made for hire” as:
a work prepared by an employee within the scope of his or her employment; or
a work specially ordered or commissioned for use as:
- a contribution to a collective work
- a part of a motion picture or other audiovisual work
- a translation
- a supplementary work
- a compilation
- an instructional text
- a test
- answer material for a test
- an atlas
- if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.
The authors of a joint work are co-owners of the copyright in the work, unless there is an agreement to the contrary.
Copyright in each separate contribution to a periodical or other collective work is distinct from copyright in the collective work as a whole and vests initially with the author of the contribution.
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IMO, the case turns on the issue of whether the photographs were taken by the detective "within the scope of his or her employment." I would argue that they weren't, since the photos were not taken as part of an ongoing investigation or by the direction of a supervisor. I would almost guarantee that the detective used his personal equipment, since a Leica is not a typical government issue camera. The instant he snapped a photo he was the sole owner of the image's copyright; if the department has any rights in this case, I would suggest it would be to punish the officer for working on a personal project on city time.
It will be interesting to see how this plays out. My bet is the detective will win the intellectual property case but may be suspended without pay for awhile as a deterrent to others.