You Can’t Fire Me, I Own the Copyright
by Pamela Chestek • June 18, 2010 • copyright
This is an old case I’ve been hanging on to for awhile. It’s a situation where the rights asserted are in lieu of an entirely different claim. Here, the plaintiff was ticked off he was fired and retaliated through copyright law.
Pro se plaintiff Joseph Valdez was a real estate salesman working for defendant Coldwell Banker Laffey Associates, a real estate broker. Valdez had signed an independent contractor agreement with Laffey Associates and the relationship was governed in part by New York state law. Valdez listed three properties for sale while employed by Laffey Associates, but only one sold before they canned him. Anyone who has bought or sold a house knows that the real estate agent takes photos of the house and the photos are a significant piece of a sales listing. Valdez was a savvy player; he had registered the copyright in the photos even before uploading them for the listing. So after he was fired he sued Laffey Associates for copyright infringement.
Laffey Associates claimed that Valdez didn’t own the copyright in the photos, it did as works made for hire. But a work-made-for-hire theory was a non-starter. Valdez was not an employee under § 101(1) since he was an independent contractor. Section 101(2) failed too, since the photos didn’t fall into one of the nine categories of works listed in § 101(2) nor was there a written instrument as required by § 101(2).
Laffey Associates’ second effort was a contorted claim based on the Multiple Listing Service (MLS) listing agreement. In it, the homeowner agrees to assign to the real estate agency the copyright in any of the homeowner’s photos used for a listing. The court pointed out that this agreement is between the homeowner and the real estate agency, not the listing salesman and the agency, so doesn’t affect the latter relationship.
But Laffey Associates scored with its last effort, a claim under New York state law. New York Code, Rules and Regulations § 175.14 states:
|a real estate salesman shall, upon termination of his association with a real estate broker, forthwith turn over to such broker any and all listing information obtained during his association whether such information was originally given to him by the broker or copied from the records of such broker or acquired by the salesman during his association.|
The court decided that:
|A photograph of a property provides information about that property just as does a textual description of the property. A potential buyer uses a photograph of the property for the same purpose as the other supplied information in the listing–to learn about the property in order to consider whether to inquire further and ultimately to buy it. Plaintiff’s photographs were acquired by him, the salesman, during his association with defendant, Coldwell Banker Laffey. Therefore, plaintiff’s photographs are included in the definition of “listing information.” Under § 175.14, plaintiff relinquished ownership of the photographs when he was required to turn them over to defendants upon his termination.|
I doubt that copyright in photos was something the legislature thought about when it wrote the statutory section; it was undoubtedly contemplating factual information like number of rooms and measurements. The court’s loose language also seems to confuse the tangible photos with the copyright in the photos. So I think it’s a bit of a cheat to read this all the way to an assignment of ownership of the copyright rather than perhaps a license, but then again the result seems fair enough. The photos are a negligible part of why a house sells, so it seems unfair to allow a salesman to leverage a routine snapshot into statutory damages or a piece of the seller’s commission.
Pro se Valdez made an unintentional run at preemption, which the court entertained. His theory was that the copyright vested with him as the author of the work. The court agreed that was true enough, but also pointed out that § 201(d)(1) of the Copyright Act permits assignment of a work “by any means of conveyance or by operation of law.” In the Second Circuit the author must give his or her express or implied consent to an assignment by the operation of law, but that happened here since Valdez willingly became a salesman for Valdez and in doing so entered into a legal relationship governed by state law. He may not have realized that assigning his copyright would be the result, but he is chargeable with the provisions of state law that affect his business. A bit of a stretch again, I think, since the court acknowledged that there was no existing legal interpretation of the meaning of NYCRR § 175.14 when it was deciding that the state law was an assignment.
So a bit squirrely on the reasoning all around, but I have no heartburn over the outcome. Valdez has appealed, docket no. 10-1740, so the Court of Appeals might.
Valdez v. Laffey Associates, No. 07-cv-4566 (BMC) (LB) (E.D.N.Y. Mar. 26, 2010)
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