Who owns the copyright to my image on my portfolio that I created?

Question

I used to work in a design agency as a graphic designer/social media manager as an apprentice. I have done work for a client who is a take away/diner and since leaving the agency I have created new, altered images of the examples of work I created for them to use on my online portfolio. In this case I have super imposed a poster I created during my apprenticeship, onto a bus stop billboard in order to change the image and it not simply be a duplicate, in turn creating a completely new image for my portfolio.

Over the past few days I have noticed on this clients Facebook account, the design agency who I used to work for or the client themselves, have pulled all my new portfolio images for this client and are using them on the clients Facebook page.

So my question is, who owns the bus stop billboard image and other altered images of this work, as they have not asked me if they could use my new images and I have made these whilst freelancing purely for my own portfolio not client use? I have not been credited/paid for the use of these images, which comes across the agency I used to work for or the client are now claiming my new images (depending on who is currently managing the clients social media).

This is from the view point of UK law.

Answer 1

The original work done for your client has ownership and control unless otherwise explicitly stated in a contract. e.g. You retain all distribution rights and so forth. Because of this you have used their IP without their permission technically speaking.

Basically, they are not allowed to use your new altered images, but you were not allowed to alter and publish them in the first place.

Answer 2

They do (probably)

Under English/Welsh copyright law (and, indeed, all other jurisdictions) the creator of a work owns the copyright unless it was created in the course of their employment.

You were an employee and the work was created specifically to meet a client contract: there is no doubt that this was “in the course of your employment”. Therefore there is no doubt that they own the copyright in the original image.

One of the things owning copyright gives you is the exclusive right to make derivative works. You have made a derivative work without having permission: it is not yours. It is probably their, however, they may be obliged to pay you for your work in creating it under the doctrine of unjust enrichment if they want to use it. That is, of course after you pay them for breaching their copyright. Some negotiation may be involved.

Unless your employment contract waived them (and a lot do) you have moral rights in both the original and the derivative.

Similarly, unless your employment contract says you can, you can’t use either the original or the derivative in your portfolio, particularly if it is publicly accessible. This is not fair dealing. However, as it is such a common practice, you may be able to argue that it was an implied term of the contract.