sarahnichole975 Posted 10 Feb 2012 , 12:24am
post #1 of

I recently left the bakery I was working for to go out on my own in a kitchen I am renting space from. During the time I was there I allowed my pictures that I did before working with them to be used in their portfolio. I have now asked them to be taken out, which they have agreed to do. Now however they are telling me that I cannot use the pictures of the cakes I did while I worked there in my business portfolio. I understand that they can use them (even though they do not have anyone on the skill level as myself to do the same work) since the cakes were done while I was employed there. But can they stop me from using them in my portfolio since they are 100% my work.

25 replies
erin2345 Posted 10 Feb 2012 , 12:39am
post #2 of

I would say the pictures are property of the bakery - they were paying you to do work for them, and the cakes went out the door as "Bakery's Cakes", not "Sarah's Cakes", kwim?

jason_kraft Posted 10 Feb 2012 , 12:57am
post #3 of

According to US copyright law, if someone hires you to make something, the person who hired you owns the copyright to what you made (unless your contract specifically states otherwise).

http://copyright.gov/title17/92chap2.html

sarahnichole975 Posted 10 Feb 2012 , 1:15am
post #4 of

Okay...I should say I had an ownership interest in the bakery (and still technically do and am just working out the buyout). Does that make a difference?

BlakesCakes Posted 10 Feb 2012 , 1:24am
post #5 of

I, too, agree that the bakery has the rights to those photos--as long as you made them as part of your employment using their materials and were paid for you time.

If the photos are of work that you did using your own materials, on your own time, and the bakery didn't commission/pay/reimburse you for the time and materials, then you own the photos and have every right to ask the bakery to take them out of their portfolio.

Rae

jason_kraft Posted 10 Feb 2012 , 1:26am
post #6 of
Quote:
Originally Posted by sarahnichole975

Okay...I should say I had an ownership interest in the bakery (and still technically do and am just working out the buyout). Does that make a difference?



That's an interesting question. The copyright owner would still be the bakery business entity, but since you had part ownership in the business you may have a legal non-exclusive right to the pictures.

The question is how far do you want to go with this (hiring an IP lawyer could be expensive), and how important your existing relationship with the bakery is.

BlakesCakes Posted 10 Feb 2012 , 1:38am
post #7 of

If it were me and I felt strongly about being able to use the photos of MY work, I'd make it a condition of the buyout.

Rae

sarahnichole975 Posted 10 Feb 2012 , 2:01am
post #8 of

Ah...very good advice, I will definitely do that! As far as the continued relationship...I have no desire for one.

jason_kraft Posted 10 Feb 2012 , 3:14am
post #9 of
Quote:
Originally Posted by sarahnichole975

As far as the continued relationship...I have no desire for one.



If that's the case then I would politely decline their request to refrain from using the pictures in your business portfolio, or just don't mention it at all and use the pictures anyway.

But if there is something in your contract like a noncompete or a waiver of ownership rights then that would need to be negotiated as part of the buyout deal.

sarahnichole975 Posted 10 Feb 2012 , 4:10am

There is nothing about noncompete or waiver of ownership rights...as a matter of fact...the only contract I have is the one that shows my obtaining ownership. There is no contingency on any continued employment. It just states that there were a transfers of ownership interests and the dates that they occur.

These were easily the most horrific people ever to work for. I have seen them back stab and screw every employee in my time there.

Who opens a bakery with very little knowledge about it? Especially with the focus on cakes knowing they can't even properly ice a cake!

Since accepting the head position and "partnership" (which essentially meant "here now we'll work you to death for a salary of $560 a week and constantly hold this "partnership" over your head) I have rarely worked less than 45 hours in a week...and more often times in excess of 50 or 60 hours...with no compensation for overtime...even had my salary deducted for Thanksgiving day...only just hoping the whole time that it would eventually get better. This was a full service bakery and we did between $2500-$4500 a week of just cake orders, not including pastries...and I was the work horse for them for it all. For the majority of the time I have been the only skilled decorator. I was constantly yelled at when I did temporarily have an assistant and she got overtime (because she was hourly). The owners daughter worked in the kitchen as well about 30 hours a week (with constant smoke breaks and nice lunch breaks). And on top of it, I kept side work just to make ends meet because of my crappy salary. I basically never had any time for my children and have lived in a constant state of exhaustion. Then the opportunity was presented for me to get out on my own and rent space in a catering company's kitchen...so I took it. Some of my best work and favorite cakes have been done there and I want to be able to show my skill level as I promote my business.

I'm sure some people will say that they were nice enough to give me part of the company...but it's because I'm the 3rd head since they opened (2 years ago) and they wanted a way to know they were going to keep someone there. Unfortunately for them, they didn't make me sign a contract. (Thank GOD!) I was told that I was added to the LLC, but recently found out that I could search and see the members...and when I did...only the original owner is on it...so I was lied to. I was told I would be given bonuses if I worked excess overtime. I was even recently told in a meeting that there was no way I could have been working much more than 30 hours the last few weeks....(try 45, 57, and another 45 my last 3 weeks.) And again...all for a HUGE Salary of $560/week....

jason_kraft Posted 10 Feb 2012 , 4:28am

If all that is true (and you have documentation) I would talk to a labor attorney ASAP, those are some serious violations and they could end up owing you quite a bit of money.

Then after they pay you, contact the dept of health, state dept of revenue, and IRS for good measure.

Texas_Rose Posted 10 Feb 2012 , 3:11pm
Quote:
Originally Posted by jason_kraft

If all that is true (and you have documentation) I would talk to a labor attorney ASAP, those are some serious violations and they could end up owing you quite a bit of money.

Then after they pay you, contact the dept of health, state dept of revenue, and IRS for good measure.




In CA those are violations. Other states, not so much. Even in a 60 hour work week, the OP was still being paid more than minimum wage.

jason_kraft Posted 10 Feb 2012 , 4:49pm
Quote:
Originally Posted by Texas_Rose

Quote:
Originally Posted by jason_kraft

If all that is true (and you have documentation) I would talk to a labor attorney ASAP, those are some serious violations and they could end up owing you quite a bit of money.

Then after they pay you, contact the dept of health, state dept of revenue, and IRS for good measure.



In CA those are violations. Other states, not so much. Even in a 60 hour work week, the OP was still being paid more than minimum wage.



Federal law still applies. From the Fair Labor Standards Act:

An employer must pay a non-exempt employee a minimum of 1-1/2 times their base wage rate
for all hours worked over 40 in a workweek.

http://www.employmentlawhandbook.com/FLSA.html

Texas_Rose Posted 10 Feb 2012 , 5:19pm
Quote:
Originally Posted by jason_kraft

Quote:
Originally Posted by Texas_Rose

Quote:
Originally Posted by jason_kraft

If all that is true (and you have documentation) I would talk to a labor attorney ASAP, those are some serious violations and they could end up owing you quite a bit of money.

Then after they pay you, contact the dept of health, state dept of revenue, and IRS for good measure.



In CA those are violations. Other states, not so much. Even in a 60 hour work week, the OP was still being paid more than minimum wage.


Federal law still applies. From the Fair Labor Standards Act:

An employer must pay a non-exempt employee a minimum of 1-1/2 times their base wage rate
for all hours worked over 40 in a workweek.

http://www.employmentlawhandbook.com/FLSA.html




Doesn't apply for salaried employees. I know from experience. I worked 70-80 hours a week on salary and I called the state labor board (in TX) and asked if that was legal for my employer to require it. They said that it was legal, and that I always had the option to quit if I didn't want to work that many hours, or to ask for a raise if I didn't feel I was making enough.

And even places that pay hourly can get around paying time and a half for overtime...my husband works 52 hours most weeks and doesn't get time and a half for his extra hours. It's completely legal the way his company does it. They pay their drivers/messengers time and a half for OT hours in California because they have to but they don't have to in other states.

The fact that her employer made her a part-owner would further complicate things too, as far as any legal action and trying to get back pay for the extra hours worked.

gatorcake Posted 10 Feb 2012 , 5:51pm
Quote:
Originally Posted by jason_kraft

Quote:
Originally Posted by Texas_Rose

Quote:
Originally Posted by jason_kraft

If all that is true (and you have documentation) I would talk to a labor attorney ASAP, those are some serious violations and they could end up owing you quite a bit of money.

Then after they pay you, contact the dept of health, state dept of revenue, and IRS for good measure.



In CA those are violations. Other states, not so much. Even in a 60 hour work week, the OP was still being paid more than minimum wage.


Federal law still applies. From the Fair Labor Standards Act:

An employer must pay a non-exempt employee a minimum of 1-1/2 times their base wage rate
for all hours worked over 40 in a workweek.

http://www.employmentlawhandbook.com/FLSA.html




Did you not read the part where the OP stated she received a weekly salary of $560 a week? She therefore was not a non-exempt employee, per the link you posted. And as Texas posted a salary of $560 per week is still more than hourly plus time and a half for a 60 hour week. While I am not saying that is sufficient compensation for the work, it is more than what would be required even if the OP was a non-exempt employee. There is no violation and your advice to seek a labor lawyer is frankly useless.

AnnieCahill Posted 10 Feb 2012 , 6:31pm
Quote:
Quote:

Who opens a bakery with very little knowledge about it?




LOL, do you ever read these forums? icon_razz.gif

Seriously, I know how you feel. In my line of work, I produce a ton of printed media. My creations from my mind and onto paper. BUT, they are still the property of my employer. And things I produced with my previous employer are still printed and used today. I make copies (I have a whole hard drive filled with PDFs) of stuff I've done.

Hope you get everything worked out soon.

CWR41 Posted 10 Feb 2012 , 6:41pm

Just because a company can require salaried employees to work more than 40 hours per week doesn't mean that they can get away without paying for overtime hours. There are few exemptions...

http://www.dol.gov/whd/regs/compliance/fairpay/fs17g_salary.pdf

jason_kraft Posted 10 Feb 2012 , 6:54pm
Quote:
Originally Posted by CWR41

Just because a company can require salaried employees to work more than 40 hours per week doesn't mean that they can get away without paying for overtime hours. There are few exemptions...

http://www.dol.gov/whd/regs/compliance/fairpay/fs17g_salary.pdf



Exactly...to be considered an exempt employee there are three tests: minimum compensation, salaried, AND job duties. It would be tough to argue that baking falls under the administrative, executive, or professional (i.e. requiring advanced education) categories required for the job duties test, regardless if there was business ownership involved.

http://www.flsa.com/coverage.html

If OP's duties were primarily restricted to more advanced decorating the bakery might have a case for classifying her as exempt as a creative professional, but I'm not sure if that's the case and would really depend on how much of her job involved following recipes vs. original creative work.

Given nonexempt status, the aggregate weekly compensation being above minimum wage + min wage * 1.5 for OT is not sufficient to satisfy FLSA, if her contract says she makes X an hour she is owed 1.5*X an hour for all overtime work.

I'm not a labor attorney but this is my opinion of the OP's situation based on the facts presented and the law.

sarahnichole975 Posted 10 Feb 2012 , 10:08pm

Well in the state of Louisiana salaried employees are supposed to be compensated for overtime. A friend of mine had it happen to her family's business. The employee filed a grievance with the labor board, had no proof, and they were forced to immediately cut him a check. In my resignation letter I have asked to be compensated for my overtime. There was actually a big to do a couple of years back about overtime violations here in Louisiana. There were so many companies not paying both hourly and salaried employees for overtime and the state cracked down on it.

Melvira Posted 10 Feb 2012 , 10:32pm

Popping back to the original issue of who has the rights to the pics, I have always been under the understanding that pictures are copyright of the person who took them. For example, if I have a photographer take my family pic at Xmas, I cannot make (legal) copies of that pic without their permission, even though it is MOST obviously a pic of MY family.

Who took these photos? Are they professional pix that someone was hired to take, are they snapshots you took, are they snaps someone else there took? I know there are people on this site that know about this because they moonlight, dabble, or even specialize in photography as well as baking. I am working on that right now. (Let's not even discuss the two freaking thousand dollar camera I bought... I BETTER be good at this!) icon_lol.gif

sarahnichole975 Posted 10 Feb 2012 , 11:38pm
Quote:
Originally Posted by Melvira

Popping back to the original issue of who has the rights to the pics, I have always been under the understanding that pictures are copyright of the person who took them. For example, if I have a photographer take my family pic at Xmas, I cannot make (legal) copies of that pic without their permission, even though it is MOST obviously a pic of MY family.

Who took these photos? Are they professional pix that someone was hired to take, are they snapshots you took, are they snaps someone else there took? I know there are people on this site that know about this because they moonlight, dabble, or even specialize in photography as well as baking. I am working on that right now. (Let's not even discuss the two freaking thousand dollar camera I bought... I BETTER be good at this!) icon_lol.gif




I took the pictures...so if that is the case, then they are mine. I also have a few that were given to me by photographers at the weddings. The rest of the issues I only brought up to show that I am not just some ungrateful employee who wants to go out on her own and wants to use my employers pictures. The bottom line is that if I had been treated with respect like a good employee and partner deserves, I would have stayed with them forever. Honestly, I just want to get this "separation" over with and grow my business. I wish them all the best of luck in finding someone to fill my shoes who will hopefully be able to take their crap...as of yet...no one has been able to.

Melvira Posted 11 Feb 2012 , 5:03am

Oh, I absolutely know what you mean! I think you went above and beyond! I would do a little internet looking to confirm, but for the cakes YOU took pics of, you can use them. The ones given to you by photographers like from the wedding or parties, if they don't mind you using them, I can't see how the bakery could stop you. Your work, someone else owns the pix, I don't see the bakery having a leg to stand on! But, laws and such change so fast, I would confirm that with someone who really knows!! Best of luck, sounds like you need to get out there and do YOUR work on YOUR schedule and actually get the credit and pay for it! You go!!! thumbs_up.gif

KoryAK Posted 11 Feb 2012 , 10:18am

On the OT issue, IDK the rules for every state, but in Alaska I don't have to pay my employees OT if I have three or fewer employees (but I do pay it). Perhaps the OP falls under something like this?

chassidyg Posted 5 Jun 2012 , 1:34pm

SaraNichole, the photographer owns the rights to the photographs. No one can use them without the orignial photographer's consent.

BakingIrene Posted 5 Jun 2012 , 1:47pm

Umph, I am working through something like this too.

YES people without experience start businesses all the time. They have startup money, they have connections, and they make buckets of profit. They pay their cronies money that has absolutely no relation to the quality of the work. The real labour force gets nothing above minimum wage. Commonly heard is "are you really doing all that work?"

I negotiated a spin-off from the parent company. Got everything in writing. I own what I created which nobody else was ever successful at doing. Not a big market, but it's my work. I took all the pictures with my own camera and the originals are sitting on MY PC at home.

Trouble is, the elderly owner of the parent company is literally losing his memory. He forgets the written agreement and tells people stuff that just isn't true.

Jenise Posted 5 Jun 2012 , 2:24pm

One thing to remember about the the pictures is that again, she was working for the bakery and while in their employ and on their time she took the photos for their portfolio therefore sounds like they are owned by the bakery. That does not mean that she cannot work out the deal when selling/dissolving her ownership that she can not workout an exchange agreement for the pictures, just right now the bakery owns them even if she took the pictures.

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