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differ around the world, and in many overseas territories if a third party applies to register the school name before the school does, then the third party will have the exclusive right to use the school name in that territory, even to the exclusion of the school itself. Trade mark protection will enable the school to control the use made of its trade marks in the particular territory and to retain control over the use made of its valuable reputation.
Copyright pitfalls Copyright issues associated with the engagement of photographers, website developers and prospectus designers often arise. There is a common misconception that if a school pays a contractor to take photographs or to create a website or prospectus, then the school will automatically own the copyright in those photographs or that website. This is not the case. In the absence of a writen agreement
to the contrary, the legal presumption is that the photographer, designer or developer will own copyright in the photographs, prospectus or website, even though the school paid for the work to be done. In practice, this means that: ✥ the school may not re-use the photographs without the photographer’s consent (for example, if the photographs were taken specifically for the prospectus, the school may not use the photographs on its website without the photographer’s consent) ✥ the school may not update or reprint its prospectus without the designers’ consent ✥ the school may not update or make changes to its website without the developer’s consent Photographers, designers and
developers often charge a large fee for providing the appropriate consent. It is often at this stage that schools seek legal advice, by which time the options are limited. Whilst there are a number of commercial steps that schools can take to try to minimise this consent fee (offering inducements such as repeat work, for example), it is far beter to avoid the situation arising in the first place by, for example:
“IT MAKES COMMERCIAL SENSE TO PROTECT THE ASSETS AND REPUTATION OF YOUR SCHOOL, BUT TRUSTEES OF CHARITABLE SCHOOLS HAVE A LEGAL DUTY TO DO SO”
✥ ensuring that you fully understand the copyright position before signing up to the photographer, designer or developer’s standard terms ✥ ensuring that the school obtains copies of the artwork or electronic files, to enable the school to use the work as it wishes. This will also provide the school with protection should the photographer, designer or developer cease to trade. The agreed terms should also
address data protection and child protection issues arising from the taking and use of photographs.
Photographs of minors If not used correctly, the use of photographs of minors (or any individual) in school marketing materials has the potential to breach the Data Protection Act. An image of an identifiable individual is considered to be that individual’s personal data. The act imposes obligations to process this personal data fairly. Therefore, before any such image is used in the school’s marketing materials (e.g. prospectus, website or social media), the school should have made pupils (or, depending on the pupils’ age, their parents) aware that photographs may be taken and used in this way. This is best covered off in a privacy notice given to pupils, parents and guardians. A privacy notice is a requirement under the act and should outline in general terms how the school will use and store the individual’s personal data. It should also make specific reference to the use of images in marketing materials. Such a privacy notice provides an opportunity for a parent or guardian to notify the school if they are unhappy for their child’s image to be used
for marketing purposes. In practice the privacy notice should be made easily available to pupils and parents, for example on the school’s website and in the pupil handbook, and referred to in the contract with parents. The consequences of breaching
the Data Protection Act may include parental complaints, investigation by the Information Commissioner’s Office, the payment of fines and compensation and damage to the school’s reputation. The school will also need to take action to remove the offending photograph from its marketing materials and this will usually involve the expense of reprinting materials such as the school’s prospectus. Photographs taken for personal use
(e.g. taken by a parent at a Christmas play or sports day) will fall under the domestic purposes exemption and so there is no need to provide a privacy notice in these circumstances. Failing to avoid these school marketing
pitfalls can lead to unnecessary cost and hassle, and can even cause damage to the school’s valuable reputation. It is recommended that anyone concerned about any of these situations seeks legal advice, especially as prevention is far beter than cure in each case. IE
LEFT: Paula
Williams
Paula Williams is an associate at leading education law firm Veale Wasbrough Vizards T: 0117 314 5616 E:
pwilliams@vwv.co.uk W:
www.vwv.co.uk
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