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NSW Can Boss Make Me Delete My Instagram Page?

Discussion in 'Employment Law Forum' started by Nala2017, 1 January 2017.

  1. Nala2017

    Nala2017 Member

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    Hi,

    I have recently got a new job but I don't start for 4 weeks. Anyway, I'm a hairdresser and I have a hair Instagram page. I was just wondering, I post work that I do in the salon and was not made by my boss. She was okay with it.

    Now that I'm leaving, can she make me delete it? Or is it legal for me to advertise that I'll be working at a new salon?

    Please help.

    Ps; The new salon is 40mins away from where I work. I don't know if that makes a difference.
     
  2. Sophea

    Sophea Well-Known Member

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    Technically the photographs you take in the course of your employment may belong to your employer so you may have to take those down when you leave. However there should be no restrictions on your ability to trade and self advertise unless there are terms in your contract which create a post contract restraint of trade.

    Has she asked you to delete it?
     
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  3. Iamthelaw

    Iamthelaw Well-Known Member

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    I would disagree with this, although I am not an expert in IP.

    Did you take the photographs yourself? Assuming that you did: Pursuant to s10 of the Copyright Act, you're the author; copyright subsists with the author. Further, s35(5) sets out that the author will own copyright unless the photo was commissioned for private or domestic purposes.

    From what you've described this wasn't the case - you were commissioned as a hairdresser and just took photos of your work.
     
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  4. Sophea

    Sophea Well-Known Member

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    Section 35 of the Copyright Act 1968 (Cth) states that copyright in work produced "in pursuance of the terms of the employee's employment" is owned by the employer.

    If an employee creates something that is valuable or useful to the employer then in the absence of any agreement to the contrary, the employer will only own the rights in that creation if the employee made "in the course of employment" - that being the disputable part of this scenario.

    Generally if an employee creates something in the course of their employment that they are engaged and instructed to do during the time of employment, during working hours, and using material provided by the employer, the copyright in the material created will be owned by the employer.

    If you have no express contract with your employer addressing the issue of copyright, you took the photographs on your private device outside of work hours then you may have an argument that your employer does not own the copyright in the photos. However, if you were using a work device and took the pictures "in the course of your employment" your employer would have grounds to assert ownership.
     
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