SA Copyright in Photographs under Intellectual Property Law?

[serca]

In 2010 I was contracted by a company to build a pergola. I built it under my builders/supervisors licence, insurance and sole trader (ABN). I employed a trades assistant at the time of the build.

Months later I built a decking, bech seat and timber screen under the pergola. This decking was my own independent contract with the customer/resident.

With the customer's permission, I hired and payed for the service of a professional photographer, he took photo's of the whole landscape. These photo's included the pergola I was contracted to build, the decking I sold and built and other surrounding landscape I had nothing to do with i.e. paving etc. The other landscaping works were carried out by a completely independent firm. This is obviously to enhance the image and capture the emotion of "outdoor living".

The customer at the time asked to borrow the photos so he could use them to advertise his property for international student accommodation. Unbeknownst to myself he was friends with the Company who sold the pergola i contracted to and without permission he gave the photos to them. With out my permission this company used my photos on tv and website advertising. I chose not to pursue legal action at the time as the company was a large firm and simply I was intimidated, and didn't have the funds to action.

5 years on I am using these photos on my website and advertising trading as a Company.

Recently I was contacted by the Owner of the company (who has since gone into liquidation/receivership) He stated and threatened if i did not remove from my website his photos and intellectual property within 24 hours he would pursue legal action.

I explained that he was actually in breach of copyright and illegally obtained my photographs.

Can I have some help in this situation?

1) I took the contract out to build the pergola and paid for photos. Are they my property?

2) The company used both my photos and work(decking) without my permission

3) Does it appear I am in breach of intellectual property Law or "passing on". and have to remove any photos?

4) Is in fact the ex owner of the firm in question in the wrong given the above scenario and possibly liable for what it is he is accusing me of?

 

[Sophea]

Hi Serca,

Technically whoever takes the photograph is the owner of copyright, however i trust that the photographer assigned copyright in the photographs to you as part of his contract? This being the case you are the owner of the copyright and if you can prove it, then you can have the other company remove the photographs from their website and potentially sue them for infringement.

As regards establishing an action in "passing off", the company would need to prove to a court that (1) they have established goodwill or reputation attached to their goods or services which is associated with the photographs (2) that a misrepresentation was made by you to the public which leads them to believe that the services offered by you are the goods or services of the company, and (3) that the company is going to suffer damage as a result of the misrepresentation.

In circumstances, where both you and the other company have established reputations - then either one of you could accuse the other of passing off (but more likely the one with the bigger reputation). However, in circumstances where you have the copyrights in the photographs, you have the right to ask them to remove the photos from their site regardless. So long as you attribute to yourself only the work is yours in the photographs, and don't suggest that you built other aspects that you did not then you should be well within your rights to use the photos.