John works for ABC Landscapes, who are contracted to build a Show garden at the Chelsea Flower Show for a sponsor, designed by a well known Garden Designer. John helps out during the build, and lays the paving and builds a dwarf wall as part of the scheme. ABC Landscapes are paid as the contractor and when the job is finished, they move on to the next project. John decides to leave ABC Landscapes and sets up on his own.
John decides it would be a great idea to use some of the photographs he took of the Show garden whilst working on the project, especially showing the hard landscaping elements of the scheme, including the paving and walling. He then uploads the images on to his Face Book page and uses the pictures for his promotional leaflets. All prospective clients are being offered the chance to engage John to build their gardens, secure in the knowledge that John has the necessary skills, as seen on his promotional material and public media.
Before you dismiss this as fantasy, you may be surprised to learn that this is not uncommon, even in the exalted world of RHS Show gardens. There are many instances of designers and landscapers claiming ownership – express or implied – simply because they happen to have had a part in setting up the exhibit. Photographs and images are taken, and even if their input is not a deliberate falsehood, the fact that the image has been shown to the public is a subtle message, claiming ownership by inference if not a direct statement of ownership.
There is no difference between the Chelsea scenario and any other landscaping project.
Every scheme has a designer (or specifier, responsible for the layout and technical elements of even the simplest of specification), a business owner (builder or landscaper) and employees, including sub-contractors or casual labour, working as a team to start and finish the job.
Any employee leaving to start their own company should not expect to use images of projects completed whilst working for their old firm, any more than someone who worked on a Show garden, unless given express and specific permission, in writing, by their old employer. Some images may require written permission from both the designer and owner of the garden from which the images were taken.
All too often, I hear of instances where ex-employees have used such photographs and posted them into the public arena, under their own banner and company name. Every day brings fresh complaints on FaceBook pages, with company owners asking for advice of how to stop ex-employees from using their work in the new firm’s promotions.
Unfortunately, you will need very deep pockets, as any legal route will be prohibitively expensive. So many things will need to be proven before any success can be achieved. First of all, as the owner of the firm that built the garden, you would need to prove that the image was taken at that site, establish who owns the copyright of the design, prove the intellectual property rights of the photographer, and prove that the ex-employee has not been given permission by any one of the interested parties – including the site owner at any time.
Of course, the immediate and best answer is to contact the ex-employee direct, and let him/her know that you are not pleased to see your projects being presented as their own. Perhaps a quiet word will convince them that it is not fair on you, having employed and trained them, only to see them take advantage of you by offering your contracts as though they were their own. Point out the costs involved in running a business, only to see your promotional opportunities being exploited by them. To be fair, they may not have appreciated the etiquette involved in the situation, and immediately take the images down.
If diplomacy does not work, you could engage a solicitor to write a ‘Cease and Desist’ letter to the ex-employee, (or look on-line for a template) as the next step, but if there is any doubt reference any of the above scenarios, you may find a problem due to disproving express or implied permission having been given to the person to use the photos by a third party.
Importantly, the person most likely to be legally affected by any misrepresentation is the owner of any new garden who engaged the ex-employee on the strength of those images.
I have been involved in several dispute cases over the years, where a property owner has commissioned a garden designer on the strength of false portfolio and advertising claims, including but not restricted to images of previous work. Other cases have involved landscapers, with many photographs and images – again, inferred or implied simply by including them in their portfolio or presentation – of works they were not responsible for. They may well have worked on the jobs, but they were not their contracts, acting only as a part of a team.
If a project fails for whatever reason, and a claim is made against the contractor, and the customer discovers, by whatever means, that the contractor had not exhibited at Chelsea, or was not the firm who had built the images as claimed by the (ex-employee) contractor, during the course of any dispute report, the case immediately becomes the subject to further investigation by The Court, and may well conflate into a fraud claim. Even if the work was not poor, any defence will be overwhelmed if evidence shows that the contract was obtained by false pretence.
The case then risks becoming a criminal matter, as well as a civil claim, dependent on the amount of the damages and costs to the customer.
Put simply, any ex-employee considering using images taken during previous employment should take great care in obtaining written permission to use them before publication. Equally, care should be given to ensuring that they are not implying that they are a Chelsea Landscaper, simply because they happened to work on a show garden.
Although I have used show gardens as an example, any landscaping project – even a block paved driveway – will be subject to intellectual property rights, especially if there is a strong design element involved. Front gardens, rear gardens, special features, specific features e.g. patio/planter configurations, water gardens, dining areas/pergolas/outdoor kitchens etc, are all examples of projects that are identifiable and any misuse of any images showing these schemes will be protected by copyright.
Everybody has to start somewhere. Showing a potential client an suitable image included in a manufacturer’s or supplier’s catalogue is much safer than risking problems by using photographs of an old employers projects without express written permission.
Alan Sargent