Photographers and the Copyright Act - dkmackinnon

Photographers and the Copyright Act


The following summarizes how the Copyright Act in Canada affects model photographers. I'm a photographer, not a lawyer, so don't consider this to be legal advice. Always consult a lawyer before making legal decisions. You can find your copy at 

http://laws-lois.justice.gc.ca/eng/acts/C-42/


What can be Copyright

According to the Copyright Act §5, copyright gives the photographer exclusive right of production and reproduction of the expression of an original idea. Note that it is the expression of the idea, not the idea itself. This takes effect automatically from the moment an image is created to 70 years after the death of the artist. The Copyright Act §27(1) defines infringing as doing anything with the image that only copyright holder would have the right to do. This copyright will be honoured in all countries that have signed the Berne Convention.

Example: If you have an idea for a particular lighting arrangement and use that to take an image, you have copyright on the resulting image but not the idea of the lighting arrangement. If, however, someone printed and sold the image then they would be infringing on your copyright.


Who Copyright Applies To

If you are an employee of a company then the company owns the copyright, but if you are a contractor or independent photographer then you own the copyright. This copyright can be licensed (royalties or a user fee) or assigned, but according to the Copyright Act §13(4), this assignment must be in writing.

Example: If a company you work for asks you to take photographs then that company owns the copyright on those images. If, however, you have been contracted( as a contractor, consultant, or volunteer) to take images then you own the copyright on those images unless you specifically assign copyright to whomever contracted you.


Assigning and Waiving Rights

The photographer also has moral rights to the integrity of the image they produce. According to the Copyright Act §14(3) these cannot be assigned but according to the Copyright Act §14(2) they can be waived. Assignment of copyright does not automatically mean you have waived your moral rights to the image; waiving moral is a separate act so, if desired, must also be provided in writing. Note that doing so waives your right to sue if they alter the image in a way that affects the integrity of the image.

Example: In model photography is common for the model to waive (not assign) moral rights to the photographer, but this must be clearly stated in the model release. In this case, the waiving of moral rights allow the photographer the freedom to re-interpret the model’s pose in keeping with their own artistic vision. For TF (Trade) arrangements, the model release can be used to formally assign part-ownership of the image copyright to the model.


Indemnity 

If you have been contracted to create photographic works of an event, consider including an indemnity clause in any contract. This clause ensures that whomever contracts you accepts legal responsibility should anyone decide to sue whomever created the event-related images.

Example: If you have been hired as a photographer for a private and someone objects to their image being made public by the event coordinator, it is the photographer who may be sued. If an indemnity clause has been included in the contract then the event coordinator is the one who must respond to the lawsuit. They may still come after the photographer, but only after they deal with the event coordinator.


Copyright works within Copyright works

If you create an image incorporating copyright work, trademarks (2D graphics), or industrial designs (3D works) then the photographer still has copyright to the image, but does not have the legal right to distribute or profit from the image. Doing so would violate the copyright of whatever is contained in the image. To protect yourself:

- Avoid using logos or trademarks (for example, t-shirts with graphics) in images.

- If using any potentially-copyright work, make sure that it has been released under one of the Creative Commons licenses that permit derivative works. Any attributions must be provided “to the best of one’s ability”. Look for these Creative Commons licenses:

CCO: No restriction on derivative works

BY: Only attribution required for derivative works

BY-SA: Derivative works must be shared using the same CC license

BY-NC: Derivative works allowed but must not be sold

BY-NC-SA: Derivative works allowed but both must not be sold and must have the same CC license.

Example: If you use a statue as a backdrop for an image then you hold copyright on the image; however, if the copyright holder on the statue doesn’t want that image distributed then you have to respect their copyright on the artwork used in the image and cannot distribute the image. Similarly if there is a trademark or logo on a t-shirt then the trademark holder has legal right to forbid you from distributing an image that features that trademark.


Establishing Copyright

According to the Copyright Act §39(1), you cannot receive damages if it can be shown that the it reasonable to believe that the defendant didn’t know copyright had been established. To avoid this problem, make it clear that your copyright has been established by adding © Person, Year to every image that you want protected. You can also add a notice to your web site indicating that all works created by you on this site are considered copyright unless otherwise stated. For extra safety, a description of key works can be registered with CIPO (Canadian Intellectual Property Office) for $60. You can also register a compilation of works (images in a collection) as a single entity for the same fee. For particularly valuable works, a lawyer can be retained for $400 to register the work with an affidavit certifying the image itself is clearly linked to the registration.

Example: If you create a series of images, whether it be a commonly-themed series or just all the images taken at an event, either can be registered with CIPO as a compilation of works for $60.


Images of Public Figures

When photographing people in a public setting, some people have have sufficient celebrity status that their likeness is “trademarked” from the perspective that they have the right to profit from that likeness. From that perspective, images of celebrities should be treated as images of trademarked works. There are three factors:

1. Is the image being used for commercial purposes?

2. Is the celebrity identifiable?

3. Does the image suggest an endorsement by the celebrity?

Powered by SmugMug Log In