Copyrights for Photographers

A copyright has the literal meaning of the two words informing it: a “copy right.” That is, a copyright is the exclusive right of the creator of an original work to control the reproduction of his/her work. Such copying includes all forms of reproduction, publication, public display and other uses.

Copyright in Canada, first codified in the Copyright Act, is founded on the principle that one who creates or possesses the work can control how it is used. To be protected, the work must be an original, and must have a fixed, or identifiable (i.e. physical, visual, electronic), form.

The international convention to indicate that work is Copyright protected is the symbol ©, followed by the year the work was created, and the name of the author.

Registration is not required (though it is available should you wish to strengthen your legal position).

Default Copyright of Photographers:

Before 2012, commissioned photographic works fell under an ownership exception in the Copyright Act. If a photograph was ordered by a customer and paid for in full, in the absence of any agreement to the contrary, the customer was considered the author of the photo and owned the first copyright. Photographers were essentially not considered “artists,” but rather were considered to be “technicians.”

While contracts remain essential to address other issues such as usage rights, licenses, or terms of payment, photographers no longer must sign an contract with their clients to establish that they are the first owner of the copyright. This quirk, or discrimination against photographers, was corrected by the coming into force of the Copyright Modernization Act on November 7, 2102. Photographers are now, by default, the first owners of the copyright of the images they produce. This applies to both photographs commissioned and paid by a client, and to photographs taken for non-commercial purposes.

Note that, the presumption applies prospectively, not retrospectively. The photographer’s right of copyright in their photos applies to all new photographs taken after the coming into force of the Copyright Modernization Act on November 7, 2102, not to photos taken before that time.

Copyright Infringement and Fair Use

Unauthorized use of a copyrighted work is copyright infringement, and actionable under the Copyright Act. However, there are a number of “fair dealing” exceptions to the exclusive right of the creator of an original work to control the reproduction of his/her work.

The complainant has the burden of establishing an alleged infringement, after which the burden of proof rests upon the defendant to make out the “fair dealing” defense.

Fair dealing must be for a listed purpose: research, private study, education, parody, satire, criticism or review and news reporting, and the dealing must be “fair.” The Copyright Act does not define what is “fair”; whether something is fair is a question of fact, and depends on each case.

Private Study

While commercial use is prohibited without the author’s authorization, in private orders made for an individual for non-commercial purposes, it is generally accepted that the person who makes the order has the right to reproduce the photo as he sees fit, without the photographer’s authorization. This person also has the right to authorize anyone to do the same. The person may print as many copies as he/she wishes, distribute them, or publish them on the Internet without limits. Typical examples include personal portraits, artist’s portraits, wedding photos, family photos, and any photos not used in a promotional or commercial context.

Rights of use and publication can be modified by contract (i.e. “No reproduction is permitted without the photographer’s written authorization.”)

Education

The use of any work in an educational context, free of charge and without prior permission, is allowed by law, even if these works are protected by copyright.

Photographers who want to prevent educational use of their images free of charge have no other choice than to protect them with a digital lock, such as a file access code and a password. The Copyright Modernization Act makes it illegal to bypass these protective locks. Note, however, that digital locks do not protect the print version of a work, only the digital version. An image purchased and then published online by a third party, may then be used with impunity by an educational institution, even if the author’s website is locked.

Creation/Mashups

Anyone can make a copy of any published work on the internet, if it is not protected by a digital lock. The user can even share a copy with other individuals, as long as there is no commerce. If the photographer’s work is copied, or mashed up, and becomes the next viral video, the creator will not be able to successfully claim infringement, or demand royalties. Photographers who want to prevent their images from being so used and distributed must protect their works with a digital lock.

Photography and Privacy

Any photograph in which a person is identifiable conveys their personal information. Personally identifiable information is protected by law, including by the Personal Information Protection and Electronic Documents Act (PIPEDA).

Photographers do not generally need permission to photograph a person for the purposes of personal photography, or for journalistic, artistic, or literary purposes. However, photographers generally need permission to distribute a photograph of a person, even for the purpose of personal photography.

For commercial activities, privacy protections usually require consent. PIPEDA requires consent to distribute photographs depicting identifiable individuals, similar to its requirement for collecting personal information.

For all activities, whether commercial in nature or not, provincial and common law privacy protections limit the distribution of photographs.

When do I need a waiver?

If you are photographing people in the course of commercial activities, you should obtain permission from all subjects that will be identifiable within your photographs. For any type of use, you should obtain permission if you intend to publish or exhibit your photographs.

Photos of public figures

Copyright and privacy laws allow you to take photographs of public figures. However, extra caution should be taken when distributing or publishing these photographs for commercial use. Professionals such as athletes and performers have the exclusive right to market their own personalities.

Photographs of copyrighted material

You may infringe the copyright in other works by photographing them. When you reproduce an entire work “or any substantial part thereof” within your photograph, you may infringe copyright subsisting in that work.

Photographs in public spaces

The Copyright Act explicitly permits architectural works such as buildings to be photographed without infringing copyright.

You may also freely photograph and publish public property, including any sculptures or other artistic works on public property, as long as the works are “permanently situated in a public place or building.” For works that are present in a public space, but not permanently situated there, fair dealing exceptions may also apply.

You may photograph private property from a distance, as long as you do so without trespassing onto the private property itself. However, when photographing around people’s homes, you must ensure that you respect the privacy rights of the people living there.

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Troy Harwood-Jones is a commercial lawyer and corporate litigator at PKF Lawyers, in Winnipeg, Manitoba. Troy’s primary areas of practice are in the arenas of Civil Litigation, Corporate and Commercial Law, and Wills, Estates, and Elder Law. Troy has unique expertise in the practice areas relating to e-commerce businesses as well as Trademarks and Intellectual Property Law.