Legal Question in Intellectual Property in New York

Re: What constitutes intellectual property?

If you were an employee of the other company, as an employer it owns all works you have created within the scope of your employment. You would then need a license from your employer to copy, reproduce and display such works, whether or not you give credit to the employer.

If you were an independent contractor when you created the work and took photos of it, the answer would depend on the type of the underlying work that was commissioned by your client. If it falls within the nine enumerated types of works under the Copyright Act, it is probably a work for hire and you have no rights to it in absence of an agreement to the contrary.

Photos are certainly works protected by intellectual property law (primarily copyright law but trademark and other legal issues may also be involved) independently of the legal protection afforded to the objects being photographed.

I am afraid this forum does not permit a closer examination of the factual and legal issues involved in your case and you should seek advice from an IP legal practitioner.

The above reply is in the nature of general information, is not legal advice and does not form a client-attorney relationship.

Re: What constitutes intellectual property?

I agree with my colleague's answer to a point but think there may be some finer points here. Let us assume that you worked for the other company to produce landscaping and that, in fact, you did so. Surely the finished product -- the scaped land (for lack of a better term) is the property of your employer's client. It belongs to neither you or your employer. Now, a picture of that same landscaping: if the picture was taken by you at your then-employer's behest it is, in fact, a work for hire. If, however, you took the picture yourself for your own purposes -- assuming no illegality in the taking of the picture itself (i.e. trespassing) -- then you own the picture (in other words, you own the copyrights inherent in the fixed image as you took and rendered it). A fine line, sure, but a line nonetheless.

Re: What constitutes intellectual property?

Yes.

The work is copyrighted once it is "fixed in a tangible medium of expression" such as a potograph. Whether it was a "work for hire" depends on a few things, but if you were an employee (as oposed to an independent contractor) taking the photograph within the scope of your employment, it probably is. Of course the photograph could be taken again by you now if the landscaping work is still there, and then as the author you would have a copyright on that photogrph at least.

It sounds to me like the company might not object to you using the photo of the work to promote yourself, because you did it. What is your relationship with them? What are they like? Frankly, even if you don't go down that route, you could simply use it, take your chances, and take it down if they object.

I must say there would be a chance they'd sue, but it probably wouldn't be worth it for them to pursue too far, if you take it down immediately.