Friday, 5 September 2014

Employer Violates Employee Copyright by Using Photograph on its Facebook Page

It is generally accepted that an employer holds the copyright in works created by an employee "in the course of ... employment".  That assumption is reflected in subsection 13(3) of the Copyright Act, which reads:
Where the author of a work was in the employment of some other person under a contract of service or apprenticeship and the work was made in the course of his employment by that person, the person by whom the author was employed shall, in the absence of any agreement to the contrary, be the first owner of the copyright, ...
This section of the Act creates an exception to the general rule that copyright resides with the person who made the work in question, to ensure that the employer gets the benefit of work that emerges from the employment relationship.

However, in a recent case from British Columbia, Mejia v. LaSalle College International Vancouver Inc., one judge has determined that an instructor at a private college was the holder of copyright in a photo that was posted by the college to its Facebook page, even though the picture depicted a student and was taken within a classroom.  The issue arose as a collateral claim in a wrongful dismissal action brought by the instructor, who was terminated for cause.  The court concluded that the college did have cause to end the employment relationship (because of disparaging comments the instructor made to students in a workshop) and that the employer was not liable in defamation for certain comments that were made about the termination of the plaintiff.  The Court also found that the instructor had defamed the college, by protesting outside the college for four (4!) months wearing a sandwich board which stated "Teacher fired for demanding LaSalle stop breaking the law", and ordered $1,500 in damages against him.

With respect to the copyright issue, the Court reviewed the relevant statutory provisions and focused on the interpretation of the phrase "in the course of ... employment".  Although the college relied heavily on the circumstances of the photo (of a student, in a classroom, modeling a project completed by another student, etc.), the Court placed greater weight on the nature of the plaintiff's employment duties:

The plaintiff was hired by LaSalle as an instructor and not as a photographer. While an instructor "proceeding generally about his master's affairs" could possibly be engaging in a wide variety of activities, whether paid or unpaid, I do not view the taking of photographs to be an example of such an activity. In the circumstances of this case, the taking of photographs was not an activity that was generally considered to be within the duties of the plaintiff instructor, and there was no contractual agreement that he do so. Though the photograph is connected with the employer LaSalle by virtue of its subject and the location in which it was taken, I do not view it as being connected with the plaintiff’s employment.
The employment contract between the parties did stipulate that "All materials developed during the term of this Contract, including those that pertain to program and course development, curriculum work and agent contacts are property of the College. Upon completion of this Contract these materials remain with the College."  However, the Court found that this language was "of little assistance", as it wasn't clear that this provision was intended to displace the effect of section 13 of the Act, which would grant copyright to the creator of the work.  Moreover, long after the photo was taken, the plaintiff had complained that the college had not recognized his copyright in the picture, which the college then corrected (by affixing his watermark to the image).  In the result, the Court awarded the plaintiff damages (pursuant to the statutory scheme) in the amount of $500.

Employers would be well advised to ensure that they obtain advice and have employees sign a comprehensive intellectual property agreement if the employee's duties will include the creation of any copyrighted works or other forms of intellectual property.  In situations where no such agreement is in place, but an employee is asked to create something as an adjunct to his or her duties, it would be wise to obtain an assignment of copyright or other intellectual property rights from the employee to avoid later disputes about ownership.  The fact that the work or IP is related to the employment may not be enough, in some circumstances, for the employer to assert its right to use or exploit the work.

Do you have questions about the development of copyrightable works or other intellectual property in the course of employment?  Feel free to contact Lance Ceaser for guidance.



  1. It sounds like employment law can be very complex. Trying to navigate the courts without a lawyer would make it even more complicated. In situations like this, having legal representation would be very helpful.

    Susan Hirst |

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