Calling all Legal Eagles

[cpr]

Yeah, probably a 'help me' thread in the past, but cbf searching. Sue me.

Friend is a freelance venue dresser/florist, been threatened proceedings over some photographs (no, not those sorts), and wants a bit of advice where she stands. Situ is thus.

An old employer is saying the photo's she is using to advertise her business, she has no right to use as they were done for clients of that company and for weddings they arranged, therefore it is their discretion if any of these images can be used.

However her argument is that she was not a contracted employee of that company (basically they let her temporary contract slide, but gave her work when they needed an extra florist - she was available to do outside work for herself or other companies and this company was aware of that), therefore in her eye's she was working freelance and if anything this company was her client for the weddings she worked on. All the work photographed was produced by her, and all photographs taken with her equipment. Therefore she feels decision on use of these photographs are down to her and not any of the companies business, as they are her client in the same way the wedding party are the companies client.


Where would she stand on this?


Cheers folks

 

[sledger]

Yeah, probably a 'help me' thread in the past, but cbf searching. Sue me.

Friend is a freelance venue dresser/florist, been threatened proceedings over some photographs (no, not those sorts), and wants a bit of advice where she stands. Situ is thus.

An old employer is saying the photo's she is using to advertise her business, she has no right to use as they were done for clients of that company and for weddings they arranged, therefore it is their discretion if any of these images can be used.

However her argument is that she was not a contracted employee of that company (basically they let her temporary contract slide, but gave her work when they needed an extra florist - she was available to do outside work for herself or other companies and this company was aware of that), therefore in her eye's she was working freelance and if anything this company was her client for the weddings she worked on. All the work photographed was produced by her, and all photographs taken with her equipment. Therefore she feels decision on use of these photographs are down to her and not any of the companies business, as they are her client in the same way the wedding party are the companies client.


Where would she stand on this?


Cheers folks

Sounds like she'll probably not be able to use them, as by the sounds of things she was subcontracted somehow to do work for this other company and as such the photos she took are their property. But i'm only a student. Await Burge's resposne.

 

[cpr]

However, if theres no terms and conditions imposed at time of agreement (no written agreement to subcontract), then will any work she produced not still count as her work? All it is is a portfolio of what she alone has produced, does payment for this give all 'image rights' so to speak, even if this was not agreed at the time?

Also, would they not have to prove this work was done for them? Alot of the photographs are bouquets etc taken against a white background, no indication of any job/location they were related to.

 

[James]

Sounds like she'll probably not be able to use them, as by the sounds of things she was subcontracted somehow to do work for this other company and as such the photos she took are their property. But i'm only a student. Await Burge's resposne.

Agree with this.

She can't use the photos would be my understanding.

 

[Pratters]

Does the firm have a copyright over all the work done for it? That is what has to be looked into.

 

[sledger]

Does the firm have a copyright over all the work done for it? That is what has to be looked into.

No it is not.

 

[sledger]

However, if theres no terms and conditions imposed at time of agreement (no written agreement to subcontract), then will any work she produced not still count as her work? All it is is a portfolio of what she alone has produced, does payment for this give all 'image rights' so to speak, even if this was not agreed at the time?

Also, would they not have to prove this work was done for them? Alot of the photographs are bouquets etc taken against a white background, no indication of any job/location they were related to.

Certain terms would be implied I would have thought, if you are contacted by some firm and agree to undertake work on their behalf, you would almost certainly be expected to assume any work you did for them would automatically become their property I imagine, particulary if she has been paid for it.

They probably would have to prove it, but a copy of the photographs in whatever context they have used them combined with some sort of proof of service from your friend would probably be enough to constitute them. With regards to the pictures that are non-descript, although it seems harsh she probably can't use them either. For the same reason CW can't just take pictures from the BBC website and put them up on the front page.

 

[fredfertang]

I'd be more use if she wanted a divorce or was getting done for drink driving but for what its worth I think she should stick to her guns - struggling to understand how the company are going to establish any IP rights in the circumstances as outlined

sans recours

 

[cpr]

Certain terms would be implied I would have thought, if you are contacted by some firm and agree to undertake work on their behalf, you would almost certainly be expected to assume any work you did for them would automatically become their property I imagine, particulary if she has been paid for it.

They probably would have to prove it, but a copy of the photographs in whatever context they have used them combined with some sort of proof of service from your friend would probably be enough to constitute them. With regards to the pictures that are non-descript, although it seems harsh she probably can't use them either. For the same reason CW can't just take pictures from the BBC website and put them up on the front page.

Most pics there are copywright the photographer though, they gave permission for the photo's to be used and are credited as such I thought.

AFAIK they gave her permission to take these photographs, certainly never prohibited her from taking them, and as none of these photo's were taken for that companies use, they must therefore be personal photographs as far as I can see.....

 

[Burgey]

Must depend on the contract (here at least) and what terms are implied into it.

Also depends on the nature of their relationship.. There was a HC case here about bike couriers who were designated subbies but the court looked at all th indicia and said they were workers.

Non-exclusivity of work, variable hours, her own business name, who pays tax, what livery she wears all important things to consider.

If she's a subbie then it will depend on the contract too. Here, though it's been a while since I looked at it, you can only imply a term to a contract if it is necessary to give business efficacy to the contract. Whether her having snaps of her work is such a thing would, I'd think, be at least arguable.

An example- say I run a business as a soind engineer and do concerts. If I take pics for my use of the way I've set up the equipment at a concert, unless there's something in the deal which says I can't reproduce them without the band's or promoter's permission, why shouldn't I be allowed to?

Sorry I can't be more definite - there's probably a UK case right on point. Zaremba or Fertang ftw here I suspect.

 

[howardj]

Copyright in works made by an employee in the course of employment under a contract of service is usually owned by the employer (eg course materials produced by a teacher for use in the classroom will generally be owned by their employer, such as a Department of Education, or in this case photos taken by a photographer in the course of their employment will generally be owned by the employer).

By contrast, in this situation, it's arguable whether the photos were taken in the course of employment. I wouldn't imagine that it is part of a florist's employment duties to take snaps of work that they have done. Rather, the photos taken were not part of the worker's employment duties. That's even accepting that she was an employee rather than just a contractor. In summary, the photos taken were outside the scope of the employment relationship; not part of her duties.

That's how I'd attack it anyway.

The above is how general copyright law works. Of course, it doesn't take account of any express conditions in any contract that she may have signed. Although, again, I wouldn't imagine any contract that she did sign would have broached the issue of photos anyway, as she's just a florist.

 

[GotSpin]

Should give this guy a buzz

 

[cpr]

The above is how general copyright law works. Of course, it doesn't take account of any express conditions in any contract that she may have signed. Although, again, I wouldn't imagine any contract that she did sign would have broached the issue of photos anyway, as she's just a florist.

Worth checking that one, as the company handles celebrity weddings (done a few footballers etc), so although none of the pictures involved are for any of them, possible a normal contract might state something of the sort. Though she'd not been a contracted employee for at least 6 months, so might be a bit moot.


Cheers for the feedback guys, certainly makes us a bit more clued up.

 

[Burgey]

Love HJ's "she's just a florist" comment. My mother-in-law's a florist. Mind if I use it?

Diplomacy and high regard for all endeavours a specialty mate? .

 

[cpr]

Love HJ's "she's just a florist" comment. My mother-in-law's a florist. Mind if I use it?

Diplomacy and high regard for all endeavours a specialty mate? .

Haha, yeah, glossed over that one. She's a florist with more letters after her name than me, thats for sure. Just goes to show you can **** about at uni as long as you want, you'll want to do the job you enjoy not what you think will pay well

 

[howardj]

Love HJ's "she's just a florist" comment. My mother-in-law's a florist. Mind if I use it?

Diplomacy and high regard for all endeavours a specialty mate? .

haha

oops

didn't mean it like that.

 

[howardj]

Worth checking that one, as the company handles celebrity weddings (done a few footballers etc), so although none of the pictures involved are for any of them, possible a normal contract might state something of the sort. Though she'd not been a contracted employee for at least 6 months, so might be a bit moot.


Cheers for the feedback guys, certainly makes us a bit more clued up.

It doesn't really matter if she hasn't signed a contract of employment.

An employment relationship can be implied.

I know, at our firm of accountants, we haven't actually signed a thing for about two years, but our conditions are clearly spelt out to us in our annual review.

The indicia as to whether youre an employee or contractor are:

- who provides the tools and equipment (if youre a contractor, you'll generallly provide these yourself
- the extent of control that an employer has over the worker (lots of control, indicates an employment relationship
- commercial risk (generally, if youre an employee, then your employer bears all the risk should your work be substandard)
- payment (whether it's per assignment which is indicative of a contractor) or per hour (which is indicative of an employee)
- ability to delegate (contractors have the ability to delegate, whereas employees must perform the work personally)

 

[Burgey]

It doesn't really matter if she hasn't signed a contract of employment.

An employment relationship can be implied.

I know, at our firm of accountants, we haven't actually signed a thing for about two years, but our conditions are clearly spelt out to us in our annual review.

The indicia as to whether youre an employee or contractor are:

- who provides the tools and equipment (if youre a contractor, you'll generallly provide these yourself
- the extent of control that an employer has over the worker (lots of control, indicates an employment relationship
- commercial risk (generally, if youre an employee, then your employer bears all the risk should your work be substandard)
- payment (whether it's per assignment which is indicative of a contractor) or per hour (which is indicative of an employee)
- ability to delegate (contractors have the ability to delegate, whereas employees must perform the work personally)

This. That case was Vabu Pty Limited vs someone (semi-drunken moment of clarity).

 

[superkingdave]

When she was working on the temporary contract, was she carrying out the work in the same way she was after the end of the temporary contract?

 

[G.I.Joe]

An example- say I run a business as a soind engineer and do concerts. If I take pics for my use of the way I've set up the equipment at a concert, unless there's something in the deal which says I can't reproduce them without the band's or promoter's permission, why shouldn't I be allowed to?

She's using the photographs to advertise her business, not for just personal use, though.

I don't buy the excuse she's putting forth that the company was her client. My layman's understanding - Wedding party contracts wedding arrangements to company, company subcontracts one aspect of the arrangements to florist. Surely the agreement between company and wedding party would matter too? The florist can't automatically assume that the wedding party consents to images of their wedding arrangements being used to advertise her own business.