If I’I perform aesthetic procedures and my employer doesn’t require me to take before and after pictures of clients who are treated and I decide to do it on my own, who owns the rights to the photo?

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If I’I perform aesthetic procedures and my employer doesn’t require me to take before and after pictures of clients who are treated and I decide to do it on my own, who owns the rights to the photo?

I do Botox and other such procedures at a doctor’s office. The doctor never required me to take before and after pictures of the clients that we treated. I created my own Instagram business page to keep as a portfolio of my work as an injector to promote myself for future endeavors. If I decide to branch off and open my own practice, who owns the rights to the photos on my page – me or my employer?

Asked on May 9, 2019 under Employment Labor Law, Florida

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 2 years ago | Contributor

First, unless the patients consented to the photographs, THEY own the rights: no one can use another's image for their own commercial/business/etc. purposes without the consent of that other person.
Second, even if patient consent is not an issue, you presumably took the photographs in the doctor's office and the injections used at least some equipment or facilities provided by the doctor; it also likely involved at least some work or contributions by the doctor and/or his other staff, whether in consultations, in deciding what would be done, in taking vitals, in adminstration, etc. You cannot use photographs taken of work you did while employed by another, at their facilities and using contributions from other staff or their equipment, for your own personal benefit. It's not that the doctor "owns" the photos, it's that you can't use things you did as part of your employment in the doctor's office to advertise your own services. You were only there and only in a position to take those photographs for employment purposes; they cannot personally profit (including by marketing yourself) using work done as part of your job for another.


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