Copyright

Sonnenblumen

Can anyone offer an informed view to this question please?

Is client approval required to use photography of client project for promotional purposes? It would be impossible to identify or make any link as to the identity of the client from the photography.

Thanks

labradoodlelady

I'm pretty sure copyright in a photograph rests with the owner of the photo (generally the photographer). I can't see how this would affect your situation as I presume that you/your company took the photos.

If you're talking about identifying the client from the photo I think you are verging more towards data protection law/privacy issues there but you've mentioned it would be impossible to identify the client. You might want to check it out further. I'm not too clued up on DP Law. www.dataprotection.ie

Is there anything in your contract with the client governing this?

I presume you offer some sort of a service and you want to use the photos for advertising? TBH, I would ask the client's permission first. Aside from any laws/regulations governing the area it's just basic manners.

Pines

It'll depend on what the client project is. If the OP has created a copyright work during the client project, and that original copyright rests with the client, then taking a photo of that project may be an infringement.

If you take a photograph of a substantial part of (say) an original artistic or literary work then that photo is a copy, and it requires permission of the copyright owner in the artistic or literary work.

Sonnenblumen

Lets say the work is a new landscaped garden.

Must the designer/landscaper have client approval to show photographic aspects of the project for promotional purposes?

Pines

Sonnenblumen wrote: »

Lets say the work is a new landscaped garden.

Must the designer/landscaper have client approval to show photographic aspects of the project for promotional purposes?

Well... a landscaped garden is almost certainly not a copyright work in itself. [One could make an argument that it falls under the category "work of artistic craftsmanship", but that would be a pretty long way from the sort of thing normally covered by that category, i.e. jewellery, artistic furniture, embroidery, etc.]

One caveat: copyright exists in works of architecture, i.e. buildings. Buildings are defined as including any "fixed structure". So an argument could be made that some element of the garden qualifies as a fixed structure. In that case they could argue that taking a photo infringes copyright. It's a long shot, but definitely arguable. Filmmakers, for example, have been known to obtain explicit permission from architects to include iconic buildings (such as the "Gherkin") in their movies to avoid any suggestion that they infringed copyright in the drawings or the buildings.

But let me play devil's advocate here and give you the most unfavourable (in my view) scenario. The landscape designer drew up maps, drawings, layouts etc, for the garden on paper or on computer. Those are most definitely artistic works, and copyright exists.

The garden is arguably a copy in 3 dimensions of the mock-up on paper, and as such is a "copy" within the meaning of the Act. An indirect copy of a copy (i.e. your photo) is nevertheless seen as being "a copy" within the meaning of the Act. Copying a 2D product in 3D, or a 3D product in 2D makes no difference, and nor does a change in form or medium.

So the owner of copyright in the original drawing could claim that the final photo is an indirect copy of his drawing. Whew. Again, a long shot.

What might rob this shaky argument of any force is that the copyright in those drawings almost certainly did not transfer to the landowner, unless there was a specific agreement to that effect. Commissioning an artist to make a drawing does not mean the commissioner owns copyright in that drawing. Copyright remains with the artist unless the circumstances dictate that there was an agreement that they would transfer, or unless a transfer is absolutely required to for the commission to make sense.

Here I would suggest that no implicit assignment of copyright in the drawings can be inferred. The landowner paid to have the garden prettified, not for the copyright in the drawings. Similarly on the "fixed structure" argument, the copyright rests with the "author", not the landowner, and the landowner would have to prove that there was an implied assignment of copyright.

Bottom line, I think that there is an arguable case, but it is significantly weakened if there was never any agreement to transfer copyright in any preparatory drawings or in the finished work as a work of architecture. I would be surprised if a dispute of this nature ever made it to court. One would have also to question what level of damage was suffered. With no real damage, the landowner would have to be extraordinarily pee'd off to pursue such a weak argument.

Obviously, non-copyright issues such as privacy could come into play if individuals or addresses were apparent from the photo.

Pines

Oh, forgot to add...

Without getting caught up in copyright issues, step back a sec.

No harm in getting agreement in advance. The client might be flattered, and it would certainly be damaging to referrals if the client felt that they had been bypassed.

Sonnenblumen

Pines many thanks for your very useful contribution . I really appreciate it. Yes of course agree bets policy is to seek approval in advance which in fact is what is done and as you say, clients are usually flattered and sometimes enquire if 'will you feature our project in ...?'

However there are very rare occasions where the client is 'publicity shy' and hence a potential difficulty. As originators of concept and realisation of design, without no implicit or written agreement re transfer of copyright, I would have thought that we would retain the right to use photgraphic references from the project portfolio to promote and demonstrate capability etc etc

Also it is a given that the identity and confidentiality of client is intact throughout all photography.

But thanks again.

denisor

Sonnenblumen, I stumbled on this tread by chance, I think you may all ready have got your answer from Pines, but as a heads up I will briefly and basically offer my two cents.

Copyright means what it says, right to copy, as creator of the subject, regardless of the medium, the creator retains the right to copy, or the copyright, simple as. If you designed a form, and have it on paper, prior to build, you own the right to copy, unless of course your agreement specifically sells the copyright to the client. If you are the copyright owner, you have the right to copy it in any shape or medium, be it an artistic render, a photograph, a video, etc. You have all ready discussed discretion and good manners so no need for me to duplicate.

My heads up would be that your drawings and or any creative representations and all communications carry a copyright paragraph informing the viewer that the copyright remains the property of the creator etc. this would usually be in the title block of any drawings. PM me if you want the wording I use on my own communications.

This maybe off topic, but a cheap and easy solution to securing copyright on work that you might have worries about would be to post a duplicate to yourself and keep on file unopened. The An Post date stamped on the envelope would be proof of the date of the contents, and obviously the sender details inside and address details would refer to originator etc.

philopus109

even if you use a snippet of his creative work which has inherent copyright, you must get permission. Its the "work" that has copyright not what is "in" the work if you get my meaning.
If he or she finds out, they has the right to sue you on various grounds (infringement, abuse, breach of contract, distorting etc,). Everyone thinks an artist is fair game. They are not and they have legal teeth now.