This post was written prior to our January 2017 merger, under our previous firm name, MacPherson Leslie & Tyerman LLP.
In addition to raising privacy considerations, the increasing ease with which photographs (and videos) are made by and of employees can give rise to certain copyright concerns. The Copyright Act dictates that copyright exists upon creation of a work. Determining who owns the copyright can sometimes run contrary to intuition. There are two common scenarios that should cause employers to stop and think “who owns this photograph?”
The first scenario is where you hire a professional photographer to take pictures (for example, for an internal office directory, your website or other promotional materials). If the photographer is a contractor, the photographer will be the owner of the copyright. However, this will not be the case if there is a written agreement with the professional photographer stating that the employer owns the copyright and that the photographer is waiving their moral rights in the work. Without that written agreement in place, employers run the risk of infringing on the copyright of the original artist.
The second scenario is where the photographer is an employee. The employer will be the owner of the copyright when a photograph is taken in the course of employment (unless the parties have agreed otherwise). However, there can be situations where an employee takes a photograph outside of the scope of their employment. In that case, the default rule will apply and the employee will automatically acquire copyright. This is a particular risk where an employee is using their own camera or smart phone and the photo is taken outside normal employment circumstances (for example at an office social). The risk to employers who want to use these photographs is that an employee may turn around and expect additional compensation for taking the photograph. Employers can avoid this risk by having employees agree in writing that all photographs taken in the workplace or at work events are owned by the employer and by ensuring that the employer’s camera is used for photographs that the employer wants to use.
As with many intellectual property issues, getting copyright ownership sorted out at the front end can help to avoid expense and conflict. Where employees are frequently taking pictures as part of their employment, employers should review their employment contracts and policies to ensure they do not run the risk of copyright infringement.