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Where employment agreements and Copyright Act collide

|Written By Jennifer Brown

A B.C. court has decided a college instructor did in fact hold the copyright on a photograph he created while working for the school.

Alberto Mejia was employed by LaSalle College as an instructor teaching computer design software and photography. He was dismissed from his job on Dec. 6, 2010, for cause, namely “professional unacceptable behaviour.”

The college claimed it had cause to terminate Mejia’s employment for his conduct during a workshop he taught when, according to a student, he spent the majority of time during a class voicing concerns about LaSalle and told students they should file a complaint with the Private Career Training Institutions Agency.

Mejia claims LaSalle terminated his employment in retaliation for, and as a means of covering up, his complaints regarding what he alleges are LaSalle’s “illegal activities.”

In Mejia v. LaSalle College International Vancouver Inc. Justice Bruce Cohen of the Supreme Court of British Columbia wrote:

“He asserts as a result of the intentional acts of LaSalle’s management in fabricating a story against him, LaSalle deliberately ruined his professional reputation; injured his ability to earn a living as an instructor now and in the future; and damaged his “already unbearable emotional state and physical health, to the extent that he continues to suffer damage, loss and expense, all of which was foreseeable by LaSalle.”

Mejia sought general, aggravated, punitive, and special damages for wrongful dismissal, as well as for defamation of character.

Cohen ultimately found that Mejia’s conduct did amount to professional misconduct: “. . . When viewed in all of the circumstances, the plaintiff’s conduct was seriously incompatible with his duties and his conduct went to the root of his employment relationship with LaSalle. . . .”

However, there remained the issue of a claim by Mejia that the college also infringed copyright by using a photograph he took and the school used on social media to promote the institution.

Mejia claimed he discovered one of his photographs was being used on LaSalle’s Facebook page in two different sections: the first in an area where the photograph was being used in combination with another photograph since June 4, 2009, when LaSalle’s Facebook page was created; the second relating to an advertising campaign promoting LaSalle’s fashion merchandising program.

Mejia informed LaSalle in February 2011 of the claimed copyright infringement. He indicated the photograph had a copyright watermark clearly identifying it as his photograph and argued it was taken during his personal time and belonged to him.

Cohen agreed, noting Mejia was hired by the college as an instructor and not as a photographer. “. . . While an instructor ‘proceeding generally about his master's affairs’ could possibly be engaging in a wide variety of activities, whether paid or unpaid, I do not view the taking of photographs to be an example of such an activity. In the circumstances of this case, 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. Though the photograph is connected with the employer LaSalle by virtue of its subject and the location in which it was taken, I do not view it as being connected with the plaintiff’s employment.

“I find, therefore, that the photograph was not made in the course of the plaintiff’s employment with LaSalle and, as such, s. 13(3) of the Copyright Act does not apply. I find, pursuant to s. 13(1) of the Copyright Act, that the plaintiff is the first owner of the copyright of the photograph in question.”

In a recent McCarthy Tétrault LLP blog post, lawyer Keith Rose noted: “At the same time, employers should be wary of assuming they have ownership of all employee creations, particularly when these are tangential (or unrelated) to an employee’s normal duties. Photographs taken at work functions by employees who are not paid to be photographers, as in the Mejia case, are common examples.”

Mejia sought up to $20,000 in damages for each of the two alleged breaches of the Copyright Act. Cohen addressed the issue of damages in his decision: “The Copyright Act provides for statutory damages. Where the infringement is for a commercial purpose (which I find, on the basis of LaSalle’s use of the photograph on its Facebook page, was the purpose in this case), the relevant provisions are s. 38.1(1)(a), which provides that an infringer may be liable for damages in a sum of between $500 and $20,000, as the Court considers just, and s. 38.1(2), which provides that the Court may reduce the amount of the award to less than $500, but not less than $200, if the defendant satisfies the Court that the defendant was not aware and had no reasonable grounds to believe it had infringed copyright.”

In his analysis, the judge ruled the plaintiff was terminated for cause and not out of any malice or bad faith on the part of LaSalle; LaSalle is not liable to the plaintiff for a claim in defamation; LaSalle has succeeded in its claim in defamation against the plaintiff, with general damages awarded in the amount of $1,500; and the plaintiff has succeeded in the claim against LaSalle for infringement of copyright, pursuant to s. 27(1) of the Copyright Act, and is awarded $500 in damages.


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