While our last post dealt with the creation of photographs and
other works of authorship by primates, robots and divine beings,
this story is a little more grounded in facts that you might see in
the average work day.
When an employee takes a photograph, who owns copyright in the
In Mejia v. LaSalle College International
Vancouver Inc., 2014 BCSC 1559, a BC court
reviewed this question in the context of an
employment-related complaint (there were other issues
including wrongful dismissal and defamation which we won't go
into). Here, an instructor at LaSalle College in Vancouver took a
photograph, and later alleged that the college infringed his
copyright in the picture after he discovered that it was being used
on LaSalle's Facebook page.
The main issue was whether the picture was taken in the course
of employment. The instructor argued that the photograph was taken
during his personal time, on his own camera. He tendered evidence
from camera metadata to establish the details of the camera,
time and date. He argued that s. 13(3) of the Copyright
Act did not apply because he was not employed to take photos.
He sought $20,000 in statutory damages. The college argued that the
photo was taken of students in the classroom and was within the
scope of employment, and copyright would properly belong to the
college as the employer, under s. 13(3) of the Act.
The court, after reviewing all of this, decided that the
instructor was not hired as a photographer. While an instructor
could engage in a wide variety of activities during his employment
activities, the court decided that "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." It was, in short, not connected with
the instructor's employment. In the end, the photograph was
not made in the course of employment. Therefore, under s.
13(1) of the Copyright Act, the instructor was the first
owner of copyright, and the college was found to have infringed
copyright by posting it to Facebook.
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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