August 7, 2013

Of copyright, property, privacy and advertising


Many years ago now, when I was just starting my own construction business, I took on a subcontract to install a natural stone walkway and stairs for a contractor at the entrance to a custom home he was building in Toronto. The stone was imported from India, and beautiful. The homeowner was also willing to pay for exquisite detail in the work. I was fairly proud of the end product and thought it would be a good idea to add pictures of the work to my portfolio. I took colour pictures and (in the pre-World Wide Web days) included them in brochures that I circulated to potential clientele. If the truth be known, I didn’t think a lot about it and, thankfully, no issues arose.

The experience does, however, raise some questions in hindsight. More recent legislation in a number of areas addresses the extent to which I could have used the photographs.

Obtain homeowner’s consent
The first thing to keep in mind is that, in the residential context, the photograph is of a person’s home. In that circumstance, publishing a photo of the home without the homeowner’s consent might be a violation of the federal Personal Information Protection and Electronic Documents Act, under which it has been held that photographs of a person’s home can constitute personal information, the disclosure of which, without consent, constitutes a violation. In such a circumstance, then, contractors should obtain the consent of their clients to take and distribute pictures for marketing purposes. This is generally addressed in the contract between the owner and contractor. Even in the commercial context, it is wise to include such a clause in the contract, to avoid confusion and ensure the owner and contractor are on the same page.

Subcontractors, of course, should obtain the consent of the contractor who hires them. This, however, would not amount to consent from the owner. Such consent might be sought directly from the owner, if practicable, or through the contractor. In addition, the contractor could be asked to indemnify and hold the subcontractor harmless in the event the owner later objected.

Contractors and subcontractors should also be wary of making misrepresentations in the manner in which they publish photographs. In provinces where consumer protection legislation has been passed, such misrepresentations will be barred in the residential context, by statute. In all circumstances, however, a negligent misrepresentation about a contractor’s abilities or experience can always be used against him or her in the event a dispute over the quality of work arises.

Give credit where it’s due
As the stonemason for the project many years ago, I would have been misrepresenting things had I suggested, either expressly or by implication, that I had prepared the design of either the stone work or the surrounding landscape elements, or that I had been involved in the installation of anything other than the stone work itself. One way to avoid confusion in this regard is to make clear in the promotional material itself what is, and is not, your work.

On the other hand, the promotion of photographs can, in many circumstances, be used to enhance and further relationships between contractors. For example, many a designer would be happy to have you recognize, in your promotional material, that it is his or her design. Arrangements can be made where, similarly, the designer’s promotional materials can credit your company with the physical work.

It should also be understood that the photograph itself remains the property of the person who took it. Even if it is of your work, or your design, you are not entitled to use a photograph without the photographer’s permission. This is clearly established in Canadian copyright law.

If someone is incorrectly holding out your work as his own, a letter setting out the error and asking that it be corrected will generally suffice. If you took the photograph, copyright should be claimed in that regard. If someone is suggesting through a photograph that he performed your work, you should raise the issue of negligent misrepresentation and damage to your reputation. If someone is suggesting through a photograph that he prepared your design, you should also advise that you have copyright in, and ownership of, that design. In the end, if saner heads do not
prevail, legal counsel should be sought to address the issue.    

Robert Kennaley has a background in construction and now practises construction law in Toronto and Simcoe, Ont. He speaks and writes regularly on construction law issues. Rob can be reached for comment at 416-368-2522, at, or on LinkedIn. This material is for information purposes and is not intended to provide legal advice in relation to any particular situation. Readers who have concerns about any particular circumstance are encouraged to seek independent legal advice in that regard.