An ex-subcontractor has set up his own website and used photos of himself, without our company's permission, working on buildings that we have the contracts for. Is it legal under commercial law to use our photos and contracted buildings to promote his business when he doesn't work on these buildings?
WA Use of Business Photos for Personal Website Without Permission?
- Thread starter Allan and Alison Howie
- Start date
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- Tags
- commercial law
Hi Allan and Alison Howie,
In relation to the contracted work:
Has the contractor signed any Work for Hire Agreements with provisions that concern who owns the work that the contractor does? Generally, if there is no express provision in the independent contracting agreement that provides the work done by the contractor to be the property of the assignor, then the contractor by default, owns that property. In other words, the creator owns the work he/shecreated. Therefore, if he worked on the building, he may claim ownership of that part of the work. The assignor, in this case, will have an implied license to use that work.
In relation to whether or not the contractor can advertise that he worked on a particular project:
This depends on your independent contracting agreement. Do you have a provision specifically asking the contractor to keep confidential about who and what he worked on? Absent such provision, I would suspect that the information could be used as it is not confidential information. However, hopefully another lawyer/legal professional will be able to shed more light on the matter.
In relation to the use of photographs:
Who took the photographs that the contractor is now using? If the photographs were taken by a contractor, then again, what does the independent contracting agreement say about ownership of contracted work? If, on the other hand, the photographer is an employee of the company, then the rights to the photographs belong to the employer.
Have you tried speaking with the contractor and asking him to remove the references/photographs? Oftentimes, it is just a case of the contractor/other party not knowing that they are doing something that is causing you distress. If the contractor is false representing himself and is claiming that he participated in a project that he did not really participate on, then yes, you should have grounds to ask him to remove this association.
In relation to the contracted work:
Has the contractor signed any Work for Hire Agreements with provisions that concern who owns the work that the contractor does? Generally, if there is no express provision in the independent contracting agreement that provides the work done by the contractor to be the property of the assignor, then the contractor by default, owns that property. In other words, the creator owns the work he/shecreated. Therefore, if he worked on the building, he may claim ownership of that part of the work. The assignor, in this case, will have an implied license to use that work.
In relation to whether or not the contractor can advertise that he worked on a particular project:
This depends on your independent contracting agreement. Do you have a provision specifically asking the contractor to keep confidential about who and what he worked on? Absent such provision, I would suspect that the information could be used as it is not confidential information. However, hopefully another lawyer/legal professional will be able to shed more light on the matter.
In relation to the use of photographs:
Who took the photographs that the contractor is now using? If the photographs were taken by a contractor, then again, what does the independent contracting agreement say about ownership of contracted work? If, on the other hand, the photographer is an employee of the company, then the rights to the photographs belong to the employer.
Have you tried speaking with the contractor and asking him to remove the references/photographs? Oftentimes, it is just a case of the contractor/other party not knowing that they are doing something that is causing you distress. If the contractor is false representing himself and is claiming that he participated in a project that he did not really participate on, then yes, you should have grounds to ask him to remove this association.
Hi Sarah,
Thanks for that. It did answer our question, but one more thing. While we were on holiday, and he was still sub-contracting for us, he wore his own business shirt and that's when he took the photos for his website, even though he is supplied with a uniform when doing our contracted work, so isn't this misrepresentation?
Thanks for that. It did answer our question, but one more thing. While we were on holiday, and he was still sub-contracting for us, he wore his own business shirt and that's when he took the photos for his website, even though he is supplied with a uniform when doing our contracted work, so isn't this misrepresentation?
Hi Allan and Alison Howie,
What exactly would the misrepresentation be? If he actually worked on the building then he is permitted to wear his own business shirt and advertise his logo unless this was expressly prohibited in the independent contracting agreement.
A contractor/sub-contractor is not an employee and is therefore, allowed to be on site representing his/her own company/brand. Again, you would need to expressly prohibit the act in the agreement.
What exactly would the misrepresentation be? If he actually worked on the building then he is permitted to wear his own business shirt and advertise his logo unless this was expressly prohibited in the independent contracting agreement.
A contractor/sub-contractor is not an employee and is therefore, allowed to be on site representing his/her own company/brand. Again, you would need to expressly prohibit the act in the agreement.
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