amartin1900 Posted 27 Aug 2013 , 11:59am
post #1 of

Amy employer is aware I do sell from home. I covered this in the interview. but I'm not sure if the pictures of my work are usable. of course they would be ones that my employer is not using online as well.

40 replies
BatterUpCake Posted 27 Aug 2013 , 12:14pm
post #2 of

Did you take the pictures? The work you created while being paid by them is their property and they can use pictures of it and claim it as there own after u leave their employ. However if you took the picture yourself then I would not guess there would be a problem. However I am not a lawyer nor did I sleep at a Holiday Inn Express last night. I would discuss this with them and see if they have issue with it. They cakes you create solely from home are yours and yours only.

Crazy-Gray Posted 27 Aug 2013 , 12:19pm
post #3 of

AIf you took the picture the copyright is yours*; for example: a professional wedding photographer photographs a cake you designed and made- those photos belong to that photographer and you would potentially have to pay them if you wanted to use them on your website.

i.e. if you photograph a cake you made they may be required to pay you to use your photograph - unless you took the photo during working hours and/or at your place of work in which case it could be argued that the taking of the photo was part of your employed job.

So, if a picture you take at work is at all recognisable that it was taken in work and not at home I would suggest not using it on your own website.

Hope that helps :-)

*I am certain there must be complications if you photograph a trademark or something in any way copyrighted

embersmom Posted 27 Aug 2013 , 2:14pm
post #4 of

One of my former coworkers does cakes from home.  Our employer knew this.  She was forbidden to take photos of anything she made at work.  She was free to photograph anything she made at her own home, though.

 

Actually none of us are allowed to photograph anything we make while at work because what we're making is considered the employer's property, not our own.
 

ddaigle Posted 27 Aug 2013 , 2:23pm
post #5 of

I worked at a bakery where they thought all cakes we decorated were THEIRS.   The problem I had with that was..99% of the people came in with a picture off of google or from another bakery that WE COPIED... so it wasn't my employer's to begin with!   We never got permission for XYZ bakery to copy that cake.   I let them think they owned the cakes I decorated but if I decorated it, I took a picture.  

jason_kraft Posted 27 Aug 2013 , 3:26pm
post #6 of

A

Original message sent by ddaigle

I worked at a bakery where they thought all cakes we decorated were THEIRS.

They are correct: any cake an employee decorates for an employer is a work for hire and belongs to the employer unless stated otherwise in the employee's contract. If you want to use a picture of a cake you made for your employer, you need the employer's permission, even if you took the picture yourself.

http://www.copyright.gov/circs/circ09.pdf

ddaigle Posted 27 Aug 2013 , 3:47pm
post #7 of

In my case I disagree..it wasn't ours to begin with...we didn't "create" as your article states...it belonged to another bakery or whoever created it from the google page they got it from.   How can my ex-employer say it's "THEIRS" when it wasn't THEIRS to begin with.   THEY stole it basically from another decorator.  Capiche?

jason_kraft Posted 27 Aug 2013 , 3:55pm
post #8 of

A

Original message sent by ddaigle

In my case I disagree..it wasn't ours to begin with...we didn't "create" as your article states...it belonged to another bakery or whoever created it from the google page they got it from.   How can my ex-employer say it's "THEIRS" when it wasn't THEIRS to begin with.   THEY stole it basically from another decorator.  Capiche?

While it's true that the design is not copyrightable if it's infringed, your biggest concern would be legal action from your employer/ex-employer. If you can prove infringement on the part of your employer in a court of law you might have a defense, but the cost for legal representation and the research required could be thousands or tens of thousands of dollars.

MimiFix Posted 27 Aug 2013 , 4:00pm
post #9 of
Quote:
 I'm not sure if the pictures of my work are usable

 

Anything you do during work hours belongs to your employer. If this question is important to you, ask an attorney.

ddaigle Posted 27 Aug 2013 , 4:01pm

Jason...are you reading what I typed?   It wasn't my employers design to begin with.  MY employer infringed on someone else.   They know we are copying pictures that customers bring in.   It's very common practice.    My employer should be worry about the other bakery coming after them rather than me taking a picture of a $40 cake I just decorated.  

 

It's not always black and white...as I know you like things to be.   My case is unique.

 

Sorry OP...this probably isn't answering your particular question. 

jason_kraft Posted 27 Aug 2013 , 4:06pm

A

Original message sent by ddaigle

Jason...are you reading what I typed?   It wasn't my employers design to begin with.  MY employer infringed on someone else. 

I did read what you typed and I understand it. You may be right, and I certainly don't think it's fair, but the fact is you would have to prove infringement on the part of your employer, and that proof is beyond the level of resources most people are willing to expend.

My employer should be worry about the other bakery coming after them rather than me taking a picture of a $40 cake I just decorated.

Correct, that is what the employer should worry about. You, on the other hand, should worry about your employer, since until it has been shown otherwise you are the one who is infringing.

There's also a catch-22 here...if you argue that you own the cake you made because your employer infringed on someone else, you are then guilty of infringing on that same someone else.

ddaigle Posted 27 Aug 2013 , 4:12pm

My proof is the picture of the cake that the customer gave me to replicate.  It's not like these are classified documents that get destroyed.   We get them all the time.  

 

I am the employee.....I don't know the law....I do what I am told.   It's now like a blatant obvious thing that I would know was the wrong thing to do.    People clock in...they do their 10 hours...they clock out.    

jason_kraft Posted 27 Aug 2013 , 4:15pm

A

Original message sent by ddaigle

My proof is the picture of the cake that the customer gave me to replicate. 

If you can track down the bakery that made the cake (assuming they are still in business), how can you determine that they were the original copyright owner?

ddaigle Posted 27 Aug 2013 , 4:19pm

I can't,,,but we copied lots of designs from Pink Cake Box...and I guarantee Ann Heap may not appreciate us copying her designs...maybe she doesn't cake....but don't come after me (employer) for copying a cake from Pink Cake Box.....or the hundreds of other bakeries & google sites. 

BatterUpCake Posted 27 Aug 2013 , 4:19pm

but you cannot copyright a cake design is what I have read repeatedly on this forum. Is that not correct?

embersmom Posted 27 Aug 2013 , 4:20pm
Quote:
Originally Posted by ddaigle View Post

In my case I disagree..it wasn't ours to begin with...we didn't "create" as your article states...it belonged to another bakery or whoever created it from the google page they got it from.   How can my ex-employer say it's "THEIRS" when it wasn't THEIRS to begin with.   THEY stole it basically from another decorator.  Capiche?


I understand what you're saying -- we get that kind of thing at work all the time too.

 

If a customer pulls something off Google that has a copyright, we're forbidden to do it because of the legal implications.  If they want a copyrighted design, they can choose an image from our edible image book. We won't copy anything from another bakery.  It's considered unethical.

 

BUT...as long as you're making that particular cake at your place of employment, the cake itself, not the design, belongs to your employer.

ddaigle Posted 27 Aug 2013 , 4:31pm

I'm not talking copyrighted designs.   I understand all that.    

jason_kraft Posted 27 Aug 2013 , 5:08pm

A

Original message sent by ddaigle

I'm not talking copyrighted designs.   I understand all that.    

If you aren't talking about a copyrighted design, it's not clear what your defense would be if you appropriated the picture of a cake you made for your employer as your own.

ddaigle Posted 27 Aug 2013 , 5:27pm

I'm talking about a picture of a cake (for example) from Pink Cake Box..that has bows, dots, stripes, etc...nothing copyrighted.   My boss would say that the cake I decorated (and copied from PCB) was HERS and I could not put it on my website/facebook.    Maybe you have misunderstood my situation.   I'm not talking about piping Mickey Mouse's face on a cake....I'm talking about she said if it was decorated in HER shop...it was HER cake.   I disagree because of what I have stated in the early conversations.     

ddaigle Posted 27 Aug 2013 , 5:27pm

I'm wore out....I'm talking a nap....be back later

jason_kraft Posted 27 Aug 2013 , 5:36pm

AIf that's the case you would most likely lose this argument in court (if it goes that far, typically these situations are resolved by a C&D or settlement). The fact that the design was based on non-copyrightable work done somewhere else is irrelevant for the purposes of determining who owns the finished product, since unless your contract states otherwise the employer owns the product and you would need permission to use a picture of it.

I'm not an attorney, so if you have questions about your specific situation I recommend contacting one for a definitive answer.

ddaigle Posted 27 Aug 2013 , 5:50pm

Let's agree to disagree.    I have not more comments.  Thanks.

kaylawaylalayla Posted 27 Aug 2013 , 6:09pm

AWhat if you take a picture after the customer takes it and they say sure you can use the picture? Just a silly question.

jason_kraft Posted 27 Aug 2013 , 6:23pm

A

Original message sent by kaylawaylalayla

What if you take a picture after the customer takes it and they say sure you can use the picture? Just a silly question.

That's actually a very good question. If the employer finds out about it they might still have cause to take legal action (especially if you are using the pictures to advertise a competing business) but I'm not sure they would be successful. Of course if you want to avoid being the legal test case for this issue the safest thing to do is to only use pictures of work you have created on your own.

AZCouture Posted 27 Aug 2013 , 6:30pm
Quote:
Originally Posted by amartin1900 View Post

my employer is aware I do sell from home. I covered this in the interview. but I'm not sure if the pictures of my work are usable. of course they would be ones that my employer is not using online as well.

Cakes you make at home are yours to do with as you please. Cakes you make at work are the property of your employer, and you may not photograph them with the intent to advertise your personal business from home. That about cover it? Not sure about the other discussions going on.... icon_cool.gif

MimiFix Posted 27 Aug 2013 , 6:56pm
Quote:
Originally Posted by MimiFix View Post

Anything you do during work hours belongs to your employer. If this question is important to you, ask an attorney.

 

Quote:
Originally Posted by jason_kraft View Post

I'm not an attorney, so if you have questions about your specific situation I recommend contacting one for a definitive answer.

 

Yeah, like I (and we) said, if this question is important to you, ask an attorney.

maybenot Posted 27 Aug 2013 , 10:17pm

It amazes me that it's so hard to understand that what you get paid to do at work belongs totally to your employer--the physical object AND photos of that object. 

 

When you're on their clock, using their materials, being paid by them, being insured/indemnified by them, then whatever you produce FOR them is completely THEIRS.  By accepting your paycheck, you are giving up ALL rights to what you've produced while on the clock. Period.

 

If you're reproducing something from another bakery, it's because your employer is willing to take the commission.  Any issue the originator might have is with your employer--NOT YOU.  You merely did what your employer told you to do.  Yes, you could say you won't do it because it's copying someone else's design, but that's likely to get you fired.  You can't use the excuse that it's a copied design as a way to make it OK for you to use the photo for your personal gain.  Two wrongs don't make a right.

 

You simply CANNOT take photos of a work product and then use that same photo to promote your own personal business.  Heck, you're lucky that your employer allows you to run a personal business that is [in any way] DIRECT competition.  I think your employer is a fool for allowing that, really.

 

You want a picture of that cake that you decorated while at work [using their cake, their icing, their water, their boards, their spatulas, their bags, their tips, their counters, ......]--then replicate it at home using all of your own stuff and take the photo [being certain that the background is easily identified as YOUR kitchen so that there's no confusion].  That cake AND that photo are YOURS.

CalhounsCakery Posted 27 Aug 2013 , 10:31pm
Quote:
Originally Posted by ddaigle View Post

I'm talking about a picture of a cake (for example) from Pink Cake Box..that has bows, dots, stripes, etc...nothing copyrighted.   My boss would say that the cake I decorated (and copied from PCB) was HERS and I could not put it on my website/facebook.    Maybe you have misunderstood my situation.   I'm not talking about piping Mickey Mouse's face on a cake....I'm talking about she said if it was decorated in HER shop...it was HER cake.   I disagree because of what I have stated in the early conversations.     

The cake would be your employers.  It doesn't matter who came up with the design, you made the cake at your employers place of work, therefore the cake, and any pictures, are theirs.  It's perfectly understandable that you wouldn't be able to post it on your facebook.  It wasn't created in YOUR shop.  You do not own the work.  If I ever get to the stage of having employees, the same will apply in my shop.  No matter WHO came up with the design, the final product belongs to the shop it was created in.

amartin1900 Posted 27 Aug 2013 , 10:50pm

These were all very helpful. I asked my coworker who also sells from home. She informed that were we not instructed to take photos of all of the cakes by the owner for the owner but for our own personal portfolios. my coworker posts all her photos to her facebook and also to our bakery facebook. I agree that I should ask what the owner would feel is best as I would want the same. 

Thank you all for your help

jason_kraft Posted 27 Aug 2013 , 10:54pm

A

Original message sent by amartin1900

These were all very helpful. I asked my coworker who also sells from home. She informed that were we not instructed to take photos of all of the cakes by the owner for the owner but for our own personal portfolios. my coworker posts all her photos to her facebook and also to our bakery facebook. I agree that I should ask what the owner would feel is best as I would want the same.  Thank you all for your help

I assume you mean she was instructed to take photos...if that's the case, I would make sure to get it in writing that the owner is OK with posting bakery pictures to personal FB page.

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