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DPChallenge Forums >> General Discussion >> Has she the right to use this photo?
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 09/30/2011 02:35:57 AM · #1
My son's girlfriend works in a beauty salon and has recently decided to branch out in her own time to do some eyelash extensions and facials on a mobile basis, in her home town, which is not the same town that she works in. While at work (the business that employs her) she took a photo with her phone, of a workmate whom she had done eyelash extensions on. She posted the picture on her Facebook page and her employers tagged the photo and put it on theirs. Then she got me to do some work on the photo, and she put that one on her Facebook page with a reference to starting to do some work on her own. She also got some business cards made up with the pp'd photo on them. Employers are not happy. They demanded that she take the photo off her Facebook page and not use it on her cards. The girl in the photo was very happy to have her photo in use and has also got the picture on her own Facebook page. I don't think that has been a problem. What do you think? Who owns the photo? Has the employer got the right to stop its use?


business card (I photographed this because I couldn't get my scanner to cooperate, so it's not best quality reproduction.)

eta I thought I'd better not show the contact details so I've replaced the real card image with this partly blanked out version.

original edited

Message edited by author 2011-09-30 03:12:40.
 09/30/2011 03:01:57 AM · #2
Is she still working there? IMO, if she wants to keep working there, she'll should probably take it down - or better yet, UNFRIEND her employers and make her stuff PRIVATE. If she's not still working there, she should still unfriend them and do whatever she wants with the photo.
 09/30/2011 03:06:02 AM · #3
She is still working there, and the employers have apparently begged her to stay when she seemed upset enough to look like leaving. However, I think that they are sticking with the demand that she not use the photo. Possibly if her new venture does well she'll be in a position to walk away without any second thoughts.

Message edited by author 2011-09-30 03:07:20.
 09/30/2011 03:09:56 AM · #4
Well if she does this kind of thing on the side, she should have you shoot another photo for her to use. :)
 09/30/2011 03:14:48 AM · #5
I'm working on an alternative - different girl who has nothing to do with the salon. It's still a camera phone shot, but I'm doing what I can.
One part of the problem is she has 500 cards with the first photo on them.

Message edited by author 2011-09-30 03:16:58.
 09/30/2011 05:11:11 AM · #6
I suspect from the employer's viewpoint, this is less about the photo and more about trying to stop her leaving and setting up on her own.
 09/30/2011 05:23:09 AM · #7
So far as usage, there are some weird rules about spending company time to do things like that.
Here's a quick example I found, from the city of Georgetown, Texas-
"Taken by City staff
When photos are taken by City staff during working hours, those photos are the property of the City of Georgetown and can be used by the City for any purpose provided they do not violate copyright laws, privacy and publicity laws, and/or City logo branding guidelines."

Now, I doubt the place she works has it all written out like that, but there was another similar example wherein somebody did some kind of computer development on company time. The consensus was that since it was company time, the intellectual property was that of the employer generally.
I'm not claiming to know the ins and outs, but keep this in mind.
The easiest solution is, obviously, shoot another one, not on company time. Printing 500 cards may just be the cost of learning in this case, unfortunately.
 09/30/2011 06:18:33 AM · #8
Originally posted by spiritualspatula:
So far as usage, there are some weird rules about spending company time to do things like that.
Here's a quick example I found, from the city of Georgetown, Texas-
"Taken by City staff
When photos are taken by City staff during working hours, those photos are the property of the City of Georgetown and can be used by the City for any purpose provided they do not violate copyright laws, privacy and publicity laws, and/or City logo branding guidelines."

Now, I doubt the place she works has it all written out like that, but there was another similar example wherein somebody did some kind of computer development on company time. The consensus was that since it was company time, the intellectual property was that of the employer generally.
I'm not claiming to know the ins and outs, but keep this in mind.
The easiest solution is, obviously, shoot another one, not on company time. Printing 500 cards may just be the cost of learning in this case, unfortunately.


Yes this is the whole issue! In Australia there are Industrial laws preventing you from using things like this that were obtained during your working hours.
She should also be very cautious when approaching potential clients for her new business who may also be current clients where she works.
The laws a very complex but are in place to protect the rights of employers.
 09/30/2011 06:24:21 AM · #9
Originally posted by JH:
I suspect from the employer's viewpoint, this is less about the photo and more about trying to stop her leaving and setting up on her own.


i agree.

there is nothing in the photo that would entitle the beauty shop over rights, i dont see any background they they can lay stake to either. If I'm not mistaken, if your son's girlfriend's job is NOT taking photos then her taking photos on company time gives them no rights, she maintains them.

the bigger problem is with her "moonlighting". I'm pretty sure they have a policy against that. now if she doesn't care to lose her job its up to her to decide whether she wants to endure a legal battle should they choose to bring one, not that she wouldn't win, but it may be cheaper to take another picture.

09/30/2011 06:34:11 AM · #10
Originally posted by mike_311:
Originally posted by JH:
I suspect from the employer's viewpoint, this is less about the photo and more about trying to stop her leaving and setting up on her own.


i agree.

there is nothing in the photo that would entitle the beauty shop over rights, i dont see any background they they can lay stake to either. If I'm not mistaken, if your son's girlfriend's job is NOT taking photos then her taking photos on company time gives them no rights, she maintains them.

the bigger problem is with her "moonlighting". I'm pretty sure they have a policy against that. now if she doesn't care to lose her job its up to her to decide whether she wants to endure a legal battle should they choose to bring one, not that she wouldn't win, but it may be cheaper to take another picture.


As stated before she took the photo whilst being paid by someone else, it doesn't matter if it's her own equipment or she has model consent. She would almost certainly lose any legal battle if she went down that path.

I agree just shoot another picture
 09/30/2011 07:02:49 AM · #11
I don't know about the legal issues, but it's just plain tacky. Taking a picture during work time to advertise your business on the side is tacky. :(
 09/30/2011 07:32:40 AM · #12
I don't know how different the rules are in Australia, but here an employee for a beauty salon can not operate outside of a salon. So if she screws someone up in any way and the person knows where she works, they could sue the salon. This may be why the owner doesn't want a picture of another employee used as advertising.
 09/30/2011 09:15:27 AM · #13
Originally posted by keegbow:
Originally posted by mike_311:
Originally posted by JH:
I suspect from the employer's viewpoint, this is less about the photo and more about trying to stop her leaving and setting up on her own.


i agree.

there is nothing in the photo that would entitle the beauty shop over rights, i dont see any background they they can lay stake to either. If I'm not mistaken, if your son's girlfriend's job is NOT taking photos then her taking photos on company time gives them no rights, she maintains them.

the bigger problem is with her "moonlighting". I'm pretty sure they have a policy against that. now if she doesn't care to lose her job its up to her to decide whether she wants to endure a legal battle should they choose to bring one, not that she wouldn't win, but it may be cheaper to take another picture.


As stated before she took the photo whilst being paid by someone else, it doesn't matter if it's her own equipment or she has model consent. She would almost certainly lose any legal battle if she went down that path.

I agree just shoot another picture


maybe this isn't the case but in order for employers to have the rights to work, there must be a work-for-hire agreement...and in order for a work-for-hire agreement to exist, one of two things has to happen: either 1) the work has to be "within the normal scope of employment" or, 2) an actual work-for-hire agreement/document would need to have been drawn up & signed.

but then again, the photo was taken on private property.

as always, consult a lawyer.

Message edited by author 2011-09-30 09:16:49.
 09/30/2011 09:23:42 AM · #14
Facebook + Employer = Error
 09/30/2011 09:32:51 AM · #15
Originally posted by Strikeslip:
Facebook + Employer = Error


agree 100% with u there
 09/30/2011 09:35:24 AM · #16
Originally posted by mike_311:


maybe this isn't the case but in order for employers to have the rights to work, there must be a work-for-hire agreement...and in order for a work-for-hire agreement to exist, one of two things has to happen: either 1) the work has to be "within the normal scope of employment" or, 2) an actual work-for-hire agreement/document would need to have been drawn up & signed.

but then again, the photo was taken on private property.

as always, consult a lawyer.


Look Mike I don't want to argue the semantics of this case but I will tell you in Australia once you sign a tax declaration which is mandatory for employment as wage and salary earner unless you are contracting to the employer you are effectively entering a work-for-hire-agreement (as you call it)

It doesn't matter if you are on private property or whatever! If an employer pays your wages you are duty bound to act in good faith. What this means is effectively the employer owns your time and you cannot use his time to conduct other business especially if it is a business that will be in competition with him.

There are many cases where employees have been prevented from taking simple things like work diaries and client list with them when they leave employment under this legislation.

Unlike many laws this one is a good one in my view.
 09/30/2011 09:52:31 AM · #17
Originally posted by keegbow:
Originally posted by mike_311:


maybe this isn't the case but in order for employers to have the rights to work, there must be a work-for-hire agreement...and in order for a work-for-hire agreement to exist, one of two things has to happen: either 1) the work has to be "within the normal scope of employment" or, 2) an actual work-for-hire agreement/document would need to have been drawn up & signed.

but then again, the photo was taken on private property.

as always, consult a lawyer.


Look Mike I don't want to argue the semantics of this case but I will tell you in Australia once you sign a tax declaration which is mandatory for employment as wage and salary earner unless you are contracting to the employer you are effectively entering a work-for-hire-agreement (as you call it)

It doesn't matter if you are on private property or whatever! If an employer pays your wages you are duty bound to act in good faith. What this means is effectively the employer owns your time and you cannot use his time to conduct other business especially if it is a business that will be in competition with him.

There are many cases where employees have been prevented from taking simple things like work diaries and client list with them when they leave employment under this legislation.

Unlike many laws this one is a good one in my view.


ops, i wasn't aware this was taking place in Australia. But in any case the original question was rights to the photo, not moonlighting, which i agree with you would not be permitted.

Message edited by author 2011-09-30 09:53:36.
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