Copyright for Photographers

Copyright for Photographers

Neil Howlett, Commercial Law Partner at Harris & Harris, gave a talk on 16th January 2015 to the members of Wessex Camera Club on copyright for photographers. This covered what could be protected by copyright, and the practicalities of taking photographs in public places. He also advised them about protecting and exploiting their rights, something which has become much more difficult in the modern world of digital photography and publishing.

As in any other context good evidence and record keeping are the start. People are much better protected if they put in place good legal agreements; model releases, licensing agreements, and contracts when they are commissioned to take photographs. They should define who can do what and be practical. Legal documents can never give 100% protection but without them the position of a rights owner may be worse.

Harris & Harris are happy to help photographers and others in the creative industries with legal agreements.

There is plenty of reliable advice available for free. The Intellectual Property Office (IPO), the Government body responsible for Intellectual Property Rights, publishes useful material written in plain English. Their Copyright Notice 1/2014 “Digital images, photographs and the Internet” explains how to use digital and photographic images on the internet. The IPO also provides online tools including IP Equip training and an IP Health Check, to help you create value from your ideas, turning inspiration into sustainable business success.

Please contact Neil Howlett

Is a verbal contract worth the paper on which it is written?

We regularly see clients who say “I haven’t got a contract”. What they mean is “I haven’t got a bit of paper”. Under English law almost any contract (except for buying land or a guarantee) can be made by word of mouth (or email). The main difference is that there is much more room for disputing the terms of a contract if it isn’t recorded – that’s more business for lawyers. Even for those areas where writing and signature are required the courts may find those in an exchange of emails.

A contract comes into existence once the parties have agreed the terms. It isn’t necessary for them to have agreed all the terms. The test is objective – the court looks at what the parties have said and whether the essential terms have been agreed. That is now commonly working through a set of emails.

Even for substantial commercial contracts there no requirement for greater formality. It is possible to create a legally binding contract before a document is drawn up and signed by the parties, even where they both expect to move on to that. As one judge put it – “Even if certain terms of economic or other significance have not been finalised, an objective appraisal of their words and conduct may lead to the conclusion that they did not intend agreement of such terms to be a precondition to a concluded and legally binding agreement.”

Even where there is an agreed intention for further condition to be fulfilled or terms to be agreed that may not prevent the contract coming into existence, if a reasonable person experienced in the business sector would think it had. A statement that a ‘formal contract will then follow in due course’ did not necessarily indicate that acceptance of a signed quotation was not legally binding.

If the parties can’t agree such further terms the existing contract is not invalid. If the parties can’t agree the court will, if necessary, enforce terms that are standard in the sector or give business efficacy to the terms agreed. What the court is very unlikely to do is to write in for you the terms that are often the most important, such as limitations on liability or practical protections for your assets and intellectual property.

The lesson is that when negotiating contracts all written communications relating to negotiations and contractual terms should be marked “Subject to Contract” unless and until you are to enter into a binding agreement on the basis of the terms agreed. As you approach that point be ready to instruct a solicitor to prepare a formal contract. Help us do that for you by letting us have clear “Heads of Agreement” setting out the essential commercial terms, and marked “Subject to Contract”. Help us save you money and protect your business.


Flexible Working – Does it work?

All employees who have worked for an organisation for more than 26 weeks now have the right to request flexible working arrangements. This includes part-time working, flexitime, job sharing, shift working or homeworking.

This is a much wider right than was available previously. It remains only a right to request and only once every 12 months. The old prescriptive rules on how to deal with such requests are gone; requests have to be considered in a reasonable manner and within a reasonable time. ACAS has produced a Code of Practice and Guidance for employers to help them understand the changes and how to handle requests in a reasonable manner.

Employers can refuse requests if granting the request would have an adverse impact on the business based on one of the business reasons set out in the legislation. These are: the burden of additional costs, an inability to reorganise work amongst existing staff, an inability to recruit additional staff, a detrimental impact on quality, a detrimental impact on performance, detrimental effect on ability to meet customer demand, insufficient work for the periods the employee proposes to work or a planned structural change to your business.

Although this system is fairly simple employers will need to be very careful about the overlap between a request for flexible working and direct or indirect discrimination. An employee seeking flexible working is supposed to specify the change which is being requested, when it is to come into effect, what effect they think the change would have and how they think any such effect might be dealt with. Employers are only required by this new law to consider requests that do that, and to respond to that specific request, but a failure to consider a request that doesn’t meet those criteria or a refusal of one that does may still result in a claim of Discrimination under the Equality Act 2010. Compensation for breach of the Flexible Working Regulations is capped at £4,000; compensation for Discrimination is unlimited. Remember that protected characteristics are wide: race, disability, age, sexual orientation or religion or belief, and part-timers should be treated equally with full timers.

There will also be challenges where several employees request flexible working; ACAS recognises that may require an employer to choose between them, though not many employers are likely to take up the suggestion of drawing names out of a hat! Remember too that health & safety obligations continue for employees who work at home.

Flexible working can work for both employers and employees. Here at Harris & Harris we have many years’ experience of partners and staff at all levels working part-time and job sharing – more than 40% of us work “flexible hours”, including many who by choice work less than 5 days a week. It requires flexibility on both sides, but it enables us to recruit and retain good people so it’s worth the effort.

For advice please contact Neil Howlett or Andy Hambleton.

New Year’s Resolutions

When Frome Chamber of Commerce ran the first year of Discuss & Do events for entrepreneurs Johnny Martin was one of the speakers, as well as doing his usual seminars at The British Library.

His newsletter this month says :
“January can be a pretty tough month for trading after the hump of Christmas – unless you happen to be a fitness coach or selling diet supplements…so as well as reviewing your marketing plans, use the time to make sure you have all your business arrangements properly documented.  In my experience more cash is lost because of unclear and undocumented business arrangements than any other reason.”

As lawyers you’d expect us to agree, but sadly it’s true. New contracts don’t have to be expensive. We can review what you have; if it is satisfactory we will tell you, if we think it needs upgrading we can do that and will give you a price for that.

If you’ve got a slow period post Christmas here’s something useful you can do that will pay dividends.

If we can help please contact us.

If you want to see more of what Johnny has to say (he’s not a lawyer) see his blog.

Teenage Parties – Parental Responsibility

There is a lot of concern about “compensation culture” and whether to do things or not. Much of this is whipped up by the papers, who don’t report the outcomes. A good example of this is the failure of a claim against the parent of a child hosting an end of GSCEs party by one of the guests.

One of the guests brought a large paddling pool to the party, and, a modest quantity of alcohol was consumed by the children under supervision. The children were boisterous but not drunk. The parents called the children into the house to eat, partly to calm things down. While they were there one of the boys went out, ran across the garden and attempted a belly-flop into the pool. Sadly, he misjudged the angle so as to end up carrying out more of a dive motion and struck his head on the bottom of the pool.

The claim was dismissed. Clearly, the parents owed a duty of care to the young guests, which was the same that a reasonably careful parent would show for their own child. The Judge said this required them:

“Reasonably to keep an eye on what was going on; to keep abreast of what people were doing; if matters were getting out of hand, to intervene in a reasonable manner, though not so as to spoil the party.”

The Judge confirmed the parent was not in breach of the duty of care owed to the injured boy. It was unrealistic to say that the presence of the paddling pool created a foreseeable risk of significant injury. The risk of diving into a paddling pool was obvious. The parent did not have a duty to instruct a child aged 16 about an obvious risk. Everyone was sympathetic to the boy, but that didn’t make him entitled to money to compensate him for his own foolishness. That seems common sense,

For assistance with Dispute Resolution please contact Neil Howlett in Frome or Andy Hambleton in Wells

Clearing snow and ice – is it dangerous?

Of course it is – you might slip over. However, if you are prepared to take that risk and do it sensibly you shouldn’t be deterred from being helping your community by a fear of being sued. There is simple guidance from the government.  If it is your property you may have a liability if you don’t clear it.

The Institution of Occupational Safety and Health, the largest health and safety membership organisation in the world says, “As a general rule it’s sensible for firms to consider the risks and take reasonable steps to prevent accidents from happening. If this means gritting outside the boundaries of your workplace, then it’s better to do that than to have people slipping over or involved in car crashes on your doorstep.”

If you want to assess the risk it’s always worth knowing your enemy. After the 2009 snows a firm of Claimant Personal Injury Solicitors doing the dreaded ‘No Win No Fee’ claims put out a leaflet about snow and ice claims which described the possibility of any claims against people clearing the highway voluntarily as an “urban myth”.

In legal terms there is a theoretical basis for a claim in Negligence, but it would only be sustainable is you created a new risk. Following the government guidance should ensure you don’t. Even if you did the Compensation Act 2006 says that a court may have regard to whether “imposing an obligation to take steps might prevent an activity which is desirable from taking place (either at all, to a particular extent, or in a particular way), or might discourage persons” from activities that were positive. Clearing snow and ice is exactly the kind of activity that is aimed at.

In Frome the Town Council has taken a pro-active approach and has a Snow Patrol.

This post is provides information not legal advice on any particular situation on which you should act.

Contact Neil Howlett or Andy Hambleton

The Law on Self Defence

Self Defence seems to inflame tabloid journalists and public opinion and Home Office politicians more than any other aspect of the law (apart perhaps from the Human Rights Act). This is something of a mystery to lawyers, most of whom think the law is clear and fair. There is sometimes poor decision making about when to prosecute, but more often “wrong” cases are the result of inaccurate reporting.

The basic principles of self-defence date back to medieval times, but the modern formulation was set out in in a case called Palmer v R in 1971:

“It is both good law and good sense that a man who is attacked may defend himself. It is both good law and good sense that he may do, but only do, what is reasonably necessary.”

In assessing the reasonableness of the force used the benefit of the doubt goes to the person accused. The test is; on the basis of the facts as the accused honestly believed them to be, was the use of force necessary at all, and if it was the force used reasonable? In deciding that juries are invariably reminded of the formulation of Lord Morris in Palmer;

“If there has been an attack so that self-defence is reasonably necessary, it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his defensive action. If the jury thought that that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought necessary, that would be the most potent evidence that only reasonable defensive action had been taken …”

That formulation has been adopted in the words of s.76 Criminal Justice and Immigration Act 2008, another bit of legislation that even the government accepted only repeated what the law already was. The Home Office always likes to be seen to be “doing something”.

Beyond that a Jury or Magistrates can take into account all the evidence in making a decision. There is no rule in law that a person must wait to be struck first, or that they must retreat. These are factors to be taken into account. The only factor defendants cannot rely upon is if they misunderstood the situation because they were drunk – imagine the injustices that could occur if they could.

Finally, if the there is sufficient evidence for the Defendant to raise Self Defence it is for the Prosecution to prove that it does not apply, “beyond reasonable doubt” (though in civil proceedings it is for the Defendant to prove it on the balance of probabilities). Before charging the CPS also have to consider whether it is in the public interest.

As an antidote to the tabloids consider the case of Mr David Summers, who burgled a flat in Peterborough. The two occupants beat him with a baseball bat, inflicting multiple injuries. They weren’t prosecuted and when he was sentence for burglary the Judge made it clear he had no sympathy for him and wasn’t going to give him any discount from his sentence because of his injuries.

Neil Howlett used to practice in Criminal Law

Some useful Latin & some common sense

Lawyers are no longer allowed to use Latin, although we sometimes lapse where there is a good phrase that doesn’t have an easy English equivalent.  One of those is ex turpi causa non oritur actio.  In English, that means that someone who is participating in an illegal activity cannot claim compensation for an injury that arises from that activity.

A lovely example of this occurred recently in which a young man called Mr Joyce sued an older man called Mr O’Brien for severe injuries he suffered when Mr O’Brien was driving and Mr Joyce was his passenger.  The Judge rejected his claim applying the principle ex turpi causa, in circumstances about which most right-thinking people would entirely agree.  Mr Justice Cooke put it like this;

“As a matter of general public policy, a participant in a joint enterprise theft which involves a speedy getaway in a van, with one participant driving and the other clinging dangerously onto the stolen items at the rear of a semi-open van, with a door swinging, cannot recover for injuries suffered in the course of that enterprise”.

“The driver cannot owe a duty of care to his co-conspirator and it is not possible to set a standard of care as to how fast the van should be driven, in circumstances where speed is necessary to get away and there is a need for the other co-conspirator to hang on desperately to the stolen items and the back of the open van in order to effect their joint objective of a speedy escape”.

The Judge did not have any difficulty in rejecting, in these circumstances, the proposal on behalf of Mr Joyce that he thought they were just borrowing the ladders with the householder’s permission, given that the householder wasn’t in, and that Mr Joyce was standing on the rear step of the Transit van trying to hold onto the ladders while his uncle drove off at high speed.  Whether Mr Joyce was prosecuted, either for theft or stupidity, isn’t recorded.

Many years ago Neil Howlett used to practice in Criminal Law.