I read a post on Behind the Chair’s Instagram page from a young stylist whose salon would not allow them to post instagram pictures. The owner was also requiring them to remove pictures that were previously allowed; and it got me thinking. I have been writing a copyright guide and this was a perfect case study to work with.
Toxic work environment aside, there are 3 main questions here to figure out whether or not a Salon owner can prohibit a stylist from taking and sharing photos? Like all legal questions, different facts will change the determination. And like most lawyer’s answers, my answer is– it depends.
The first question is: Who Owns The Photos?
The general rule is, the author of a work owns the copyright. Under copyright law, the creator of the original expression in a work is its author. Under this rule, the one who took the photographs would be the owner. Copyright gives the owner of a work the exclusive legal right to reproduce, or permit others to reproduce your work. Owning a copyright means you completely control the reproduction and distribution of that work. This also means you own the exclusive rights to public performance or display of your work. You control who can and cannot copy or adapt your work.
And you control who can post the photo on Instagram.
So that’s it? That was easy.
Unfortunately it is not that simple. Identifying the author is not always as cut and dried as it may sound. If you create a work personally, for yourself, you are the author. Job done. But if you create the work for someone else or create it as an employee of a company, you may not be the author and therefore have no claim to the work. These are called works made for hire.
Works made for hire can cause some confusion as far as who rightfully owns the work. The work made for hire doctrine states that if you are hired to create something, you do not own any copyright in what you create on that project. Instead, the people cutting the check own the rights. Cash is king right? Further, the work for hire doctrine also states that a work prepared by an employee within the scope of his or her employment is owned by the employer.
So you will need to figure out if the worker is an employee or independent contractor in order to know who owns the photos.
I am not going to go into depth on employment law but we can touch on some basics. There is no one specific thing that categorizes on as an employee or IC. Even an employment agreement or independent contractor agreement is not dispositive.
Generally, if the boss maintains a fair amount of control over the worker and their work, she is likely an employee. Some signs that a worker is an employee are: The Owner may require the worker to wear a uniform; the Owner may require the worker to work a particular schedule or minimum amount of days/hours; the worker may not handle their own sales receipts; The worker may not make their own appointments; the owner may provide training; the owner may provide supplies such as shaving cream, shampoo, blades, towels, capes and smocks.
In a true independent contractor relationship, the owner merely contracts out a task to be completed. The owner does not have the authority to instruct the contractor on how they should perform the job. In most cases, an independent contractor is someone hired to do a particular job for a finite amount of time. This is not so clear in the hair industry. For now, the worker is probably an independent contractor if the worker has a key to shop; the worker makes their own schedule; the worker buys their own products; the worker has their own business phone number. The less control the owner has the more likely the worker is an IC.
If the Stylist is an independent contractor, then the photos are owned by the Stylist unless they fall under one of 9 categories and the parties have a signed written agreement stating that the work was created for the company. No agreement, no work for hire.
If we decide that the Stylist falls into the employee category, we need to decide whether we believe that the photos were created within the scope of such employment. Once again, there is no bright line rule so it's a judgment call. One could argue that photography is outside the scope of hairstyling. Cutting, washing, coloring and drying are all clearly within the scope of a stylist’s employment. Taking photos, not as much. That said, there are arguments that could be made in favor as well, such as photos of work are a big part of the industry and are part of promotion and marketing, therefore part of an employee’s job.
These inquiries all come down to judgment. Until there is a lawsuit or tax audit, we cant know how a court will rule.
The second question is: Whether the owner can prevent photos in the shop?
When it comes to photography in public space, if you can see it with your natural eye, you can usually photograph it without restriction. This includes people. Unless there is a reasonable expectation of privacy in the place you are shooting, you should be safe.
If private property is open to the public (restaurant, barbershop, salon, etc), you can generally take photos unless there is a sign stating that you can’t. Imagine if you couldn’t ‘gram your food any more. How would we eat? As long as it is not in an area where there is an expectation of privacy, i.e the bathroom, you are probably good to shoot. However, if an employee of the property tells you to stop, you have to stop.
So the salon owner can prevent photos on private property?
Technically as the operator of private property they can prevent photos. But this would probably need to be enforced across the board. No one could take pictures, meaning clients would be barred from photography as well. If the owner is not barring all photography, then workers can likely take photos as well.
But there is another wrinkle here. According to the National Labor Relations Board, there are narrow circumstances where you can prevent workers from taking photos. In most instances where companies have had rules with broad prohibitions against taking photos or recordings at work, the policy has been found invalid, under Section 7 and Section 8(a)(1) of the National Labor Relations Act (NLRA). In The Boeing Company case, 19-CA-90932 (May 15, 2014), Boeing had a policy that prohibited photography by employees. However, the NLRB found a violation of employee rights. Boeing said the policy was to prevent the leaking of proprietary information. However, there were VIP tours that allowed photographing in areas that prohibited employee photos, so the policy was seemingly too broad and in violation of workers rights. The Judge concluded that Boeing’s no camera-enabled devices rule “reasonably discourages its employees from taking photos of protected concerted activities.”
The case law shows us that, while policies may contain language that prohibits employees from taking photos in the workplace, the policy must clearly indicate a valid purpose such as to protect trade secrets or the privacy of the third party whose photograph is taken.
The third question is: Can we get in trouble for posting clients?
The BTC post indicated that the Owner was also concerned with legal backlash from posting clients and originally asked the workers to have clients sign photo releases. There is some validity to this concern. We all have a right to our name, image, or other defining attributes and a right to control how they are captured, distributed and used. And we have a right to be left alone.
Remember that taking the photos in the salon setting is probably ok. As long as the photos are not in a private setting, no expectation of privacy exists. But how you share the photos matters. Commercial use changes the inquiry. The difficulty lies in what constitutes commercial use. Even if you are not selling the photos, if they appear on a site that acts as advertising for your work, that might reach the level of commercial.
The best way to protect yourself is by getting consent. For Insta posts you probably don’t need to get a release form signed. You can just ask the client if you can post online. If they sit there and pose for the pic, chances are you won’t have any issues. If they ask you to take it down later, just do it. You can also post a clearly visible sign that says you take photos of your work and clients can let you know if that is not okay or add a note to your booking/checkout form. If you plan to do more with the photos such as an ad campaign or public poster, or your work tends to get reposted, you may want to get a signed release.
Overall, photos in the salon are not a big deal, nor are they a major legal risk if you take a few steps to cover yourself. However, it may actually be a violation of labor standards if your salon owner prevents you from taking any photos. That said, if you have to threaten an owner with the Labor Act, it might be time for a new workspace.
As far as ownership, it depends on your classification as a worker or any agreements you have in place. Generally the creator owns the copyrights. And if you own the copyrights, you can post your work, as well as modify and distribute your work as you please.