'Part of the job' is what you do on company time Picture imperfect: One man takes a picture in Oklahoma City, sells it and is congratulated by his bosses. Another man, who does the same thing, is fired.

WORKING LIFE

February 25, 1996|By Deborah L. Jacobs | Deborah L. Jacobs,CHRONICLE FEATURES

Two workers left their offices on the morning of April 19, 1995, and rushed to the site of the terrorist bombing in Oklahoma City.

There they both snapped pictures of a now-famous scene: a firefighter carrying the bloody body of a 1-year-old girl out of the rubble.

Charles Porter, 26, a credit specialist at Liberty Bancorp., sold his photo to the Associated Press and to Time magazine. Since then, he's become something of a celebrity at the bank, where he's worked for almost three years.

Lester LaRue, 58, a safety inspector for Oklahoma Natural Gas, has a very different story. He sold his picture to Newsweek magazine, but his company wasn't happy about it.

After several months of dickering over who owned the picture and where the money should go, Oklahoma Natural Gas fired Mr. LaRue in September. Now out of work after 32 years with the company, he's suing Oklahoma Natural Gas for wrongful termination. They're suing him for copyright infringement.

The difference between these two cases, both of which involve amateur photographers, turns on a technical legal question: whether taking the picture was part of each worker's job.

As a rule, the company owns anything you create or invent "within the scope of employment," says Dennis Martin, a Los Angeles lawyer. If your work winds up earning the company a lot of money, you're not entitled to anything extra.

A prime example involves Post-it notes, the brainchild of Art Fry, a 3M scientist who is now retired. Mr. Fry was singing in his church choir 20 years ago when he conceived of a bookmark that wouldn't fall out of his hymnal but could be removed when he no longer needed it.

Mr. Fry, whose job involved new product development, got credit for his revolutionary concept. But there was never any question that the idea belonged to 3M, even though Mr. Fry dreamed it up on his own time.

On the other hand, if your after-hours projects have nothing to do with your job, any money you make is all yours, Mr. Martin says.

So Mr. Porter, the banker who took pictures at the bomb site during a break, with his own camera, can do anything he wants with the money he earned. (He would not say how much that is, but he's given most of it to charity.)

Mr. LaRue's case is much tougher. The company argues that taking pictures at the bomb site (with a company camera) was part of Mr. LaRue's job, whether or not he was specifically dispatched there.

By using work activities for personal gain, Mr. LaRue violated the company's conflict of interest policy, says Don Sherry, a spokesman for Oklahoma Natural Gas.

Management, which wanted any money from the picture to go to charity, also had moral objections to an employee "profiting" from the bombing.

Mr. LaRue wouldn't comment, but his lawyer, Jerry Dunlap II, says his client was on "a personal errand," just like hundreds of other people who left work that day to see what had happened. Using the company camera to take the picture was no different from using the office telephone to make a quick personal call, he says.

This case "gets right to the edge of what's within the scope of employment," Mr. Martin says. You're on shaky legal ground when you're doing something the boss has asked you to do in the past "to make an extra buck." A receptionist who writes a novel on her own time wouldn't have a problem, but a university professor who turns her lecture notes into a book might.

Every case is different, however. A court would consider not only your job description and any contracts you signed, but also whether you used office equipment, did the work during business hours, or violated company rules. So check with a lawyer before you devote a lot of time to that dream project.

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