Do You Have All the Rights Required to Publish the Photos Purchased by Your Business?

February 28th, 2017

By Pascal Lauzon, Partner, Lawyer and Trademark Agent

You arrange for someone to take photos of your business for your website. Can you reuse these photos on your company’s Facebook page? What about your personal LinkedIn profile? It all depends on the scope of the rights you acquired from the photographer.

The owner of a copyright (in this case, the photographer) can definitely authorize another party to use their work (i.e., the photos of your business), but they can also impose “limitations relating to territory, medium or sector of the market or . . . scope.” In today’s digital era, the “material forms” available to publish works is almost infinite, with new forms arising on a regular basis. Meanwhile, the rights we have (or think we have) can be insufficient and lead to unfortunate scenarios involving copyright infringement.

In Chung v. Brandy Melville Canada Ltd., 2016 QCCQ 2735, the clothing retailer, Brandy Melville, hired a photographer to take photos of one of its employees who would act as a model to promote their clothes. However, discussions between the photographer and the company only took place between the photographer and the employee he was hired to photograph. Brandy Melville was under the impression—and this is what it had asked of its employee—that the company would acquire all of the rights to the photos produced as a result of the photo shoot. But in the conversations that transpired between the employee and the photographer, it was agreed that the photos in question could only be used on the company’s Instagram and Facebook accounts. Since he was working for free, the photographer’s objective was to attract attention to his photos in hopes that they would be published in major fashion magazines one day, in return for royalties.

Brandy Melville later reused the photos on a promotional postcard it handed out to customers. Following a lawsuit for copyright infringement instituted by the photographer, the Court ruled that this use was clearly unauthorized and in violation of the photographer’s copyright. It ordered the company to pay the photographer $5,000 in damages.

Without a clear contract detailing the rights that allow the client to freely reproduce or use a photo, or any other type of work protected by copyright, problems can arise. In discussions with an author who is being commissioned to create something (such as a photo, text, logo, etc.), the client can presume that it will be entitled to use the work within the strict framework of the uses that have been specifically discussed. Anything beyond that is risky. But if discussions are entrusted to an employee who does not understand the company’s potential intentions regarding the work that is commissioned, the risk is considerably greater.

Copyright law presents a number of subtleties, and the many platforms that can be used to distribute works each have their own distinct features. Are you about to undertake a project? To make sure you acquire all of the rights you may need someday, contact our team of specialists.