COPYRIGHT in Canada

[tami1215]

Hi everyone,

I was looking at the Professional Photographers of Canada website and reading up on Canadian Copyright Law here http://www.ppoc.ca/copyright.php.  At first, this paragraph really concerned me:

Who is the author of a photograph determines who owns the copyright in the photograph. Generally, the author is the first owner of the copyright in a work. This is true for photographs with some exceptions. The Copyright Act provides that where a photograph is commissioned the copyright belongs to the person who orders the photograph.(emphasis added)

I intrepreted that as when a client commissions photography, that the photographer is NOT the copyright owner and therefore can NOT license the photographs to the client for personal, non-commercial uses and that the photographer essentially no longer "owns" the image.

That seemed to be completely opposite of how many professional photographers operate.  So, I then looked up the Canadian Intellectural Property Office (CIPO) guide which states: "The author is typically the person who owned the negative or original photograph at the time it was made."  Which is what I had thought to begin with.

However, the CIPO also provides this in a FAQ section (http://www.cipo.ic.gc.ca/eic/site/cipointernet-internetopic.nsf/eng/wr02401.html#q4):

Q.  Who owns the copyright?

A.  Generally, the owner of the copyright is:

• the creator of the work;
• the employer, if the work was created in the course of employment unless there is an agreement to the contrary;
• the person who commissions a photograph, portrait, engraving or print for valuable
  consideration (which has been paid) unless there is an agreement to the contrary; or
• some other party, if the original owner has transferred the rights. (emphasis added)

So, my final assumption is that Canadian professional photographers get around client copyright ownership by providing statements in their contracts to the contrary.  And that because of Canadian Contract Law, the agreement between a client and a photographer (that the photographer owns the copyright and may license the photographs for personal, non-commercial uses to the client) would satsify Canadian Copyright Law.

If I'm right or wrong, either way I would really value your opinions, experiences, intrepretations, and discussions. 

Thank you.

[CR Backup Admin]

What it is saying, is that, if i hire you to take photographs of, for example, food used in advertising of my business, then i own the rights to the photographs.

That is what I would expect, the photographer would not own or be able to sell the photographs that i paid him to take for me.

Same for personal portraits, the photographer does not own the rights and cannot sell them to a advertising agency.  He might charge me for additional prints if I want them though.

[Bob_McBob]

In Canada, the copyright belongs to whoever commissioned the work by default.  I assume most Canadian photographers specify that they retain copyright in any work-for-hire contract.  I certainly do this whenever I am paid for photography work.

[unfocused]

This isn't unique to Canada. I believe the same basic principle applies in the U.S.

[rumorzmonger]

That's why professional photographers always stipulate in their contracts that they retain the copyright to all images they produce - and why they also never work without a contract. 

[CR Backup Admin]

That's why professional photographers always stipulate in their contracts that they retain the copyright to all images they produce - and why they also never work without a contract. 

I do not agree.  If my company hires a photographer to photograph my products, he will never own the copyright to the photos, and cannot sell them to a competitor.

Try telling that to tens of thousands of companies who hire photographers for their products.

[rumorzmonger]

That's why professional photographers always stipulate in their contracts that they retain the copyright to all images they produce - and why they also never work without a contract. 

I do not agree.  If my company hires a photographer to photograph my products, he will never own the copyright to the photos, and cannot sell them to a competitor.

Try telling that to tens of thousands of companies who hire photographers for their products.

I was referring to creative photography, such as weddings, portraits, or location assignments, where the images are unique and reflect the talents of the photographer.  If the photographer is a working professional and isn't able to retain the rights to the images, then you're paying more for his services. 

I think most people would understand that proprietary product photography is a different situation - even though the real working pros will still retain their copyright to the images, and they will simply license them back to the company that hired them on an exclusive basis.

[awinphoto]

Copyright is such a finicky issue.  I shoot product photography for a local company where I live and it is understood that while I am the photographer, they own copyrights with the photos and I cannot resell the photos.  NOW... It is also understood if i have a photo I shoot that I like I can put it in my portfolio, put in on my website, promotionals, etc... The advertising manager does the same thing with her personal portfolio where when she uses my photographs in her layouts and catalogs, etc... For her it's a reflection of her layout/graphic design skills and for me, it's a reflection of my photography skills... We just cant profit off the photos any more than whats in our paycheck. 

With just about all my other jobs, I have written into my contracts I own copyrights... On weddings, portraits, architecture, etc... Now also the rough rule of thumb of "if you alter the photo 5% then the photo is yours" is also sketchy but used in everyday life, SO, if you shoot a photo for a client, they like it, buy it, and then you turn it into fine art, clip things out, do post production to the photo, etc... Then as long as you keep your nose clean and it's not perfectly recognizable, then it is what it is. 

[awinphoto]

FMI, those of you worrying about copyrights... how many of you actually have gone to your countries respective copyright website and registered your images?  I'm not 100% in canada, however in the US you can go to the US Copyright website, pay $40-45 for a 30 minute window of time to upload your photos to their website.  You fill out your personal and professional information, and submit them... I a few months you get a certificate saying they are copyrighted under your name.  In court, it's hard to prove you were the person who fired the shutter on the camera unless you have witness's and or have other supporting documents but having the copyright certificate, that goes a long way in proving your case.  Lastly, http://www.digimarc.com/DigimarcForImages/  for a yearly fee you can put an invisible digital watermark on your photos... you can post your images on your website with no visible watermark to degrade your images, and depending on your level of purchase, they will scan the internet for their watermarks so if someone takes your image and puts it on their website, you will know about it.  If you get a big enough company to do it, you can make bank.  =)  NAPP tested this service by taking a photo with the invisible watermark, having the photo published in a book, scanned the photo from the book in a scanner, and open it in photoshop and photoshop still found a trace of the watermark.  I haven't tested this myself, but NAPP is very credible and I would trust them so if that is 100% true, this is an incredible technology. 

[unfocused]

awinphoto: great advice and comments. I didn't know about the online registration in the U.S. Very informative and helpful.

You're right. As with most things, a little common sense and having a good relationship with your clients is the most important thing.

Sometimes, I think people view copyright protection as some sort of a magic wand that will make pictures more valuable. But, the value of any image is in the image itself, not in the legal protection put up around it.

People also seem to forget that copyright protection is only useful if they intend to enforce that protection. Which means hiring lawyers and going to court. Copyright protects your financial interest in the image. It allows you to enforce (through the legal system) your rights to profit from the image. As with most things in life, cooperation and common sense are usually more effective and cheaper than running to court.

[Gumball]

That's why professional photographers always stipulate in their contracts that they retain the copyright to all images they produce - and why they also never work without a contract. 

I do not agree.  If my company hires a photographer to photograph my products, he will never own the copyright to the photos, and cannot sell them to a competitor.

Try telling that to tens of thousands of companies who hire photographers for their products.

I was referring to creative photography, such as weddings, portraits, or location assignments, where the images are unique and reflect the talents of the photographer.  If the photographer is a working professional and isn't able to retain the rights to the images, then you're paying more for his services. 

I think most people would understand that proprietary product photography is a different situation - even though the real working pros will still retain their copyright to the images, and they will simply license them back to the company that hired them on an exclusive basis.

In Canada, it doesn't matter what type of photography it is.  The person who commissioned the photo holds the rights unless it's stipulated otherwise in a contract.  So yes, the  photographer can write up the contract with the intention of maintaining the rights to the image, but an educated consumer won't sign such a paper.  Wedding, product, it's all the same. 

[Mt Spokane Photography]

That's why professional photographers always stipulate in their contracts that they retain the copyright to all images they produce - and why they also never work without a contract. 

I do not agree.  If my company hires a photographer to photograph my products, he will never own the copyright to the photos, and cannot sell them to a competitor.

Try telling that to tens of thousands of companies who hire photographers for their products.

I was referring to creative photography, such as weddings, portraits, or location assignments, where the images are unique and reflect the talents of the photographer.  If the photographer is a working professional and isn't able to retain the rights to the images, then you're paying more for his services. 

I think most people would understand that proprietary product photography is a different situation - even though the real working pros will still retain their copyright to the images, and they will simply license them back to the company that hired them on an exclusive basis.

In Canada, it doesn't matter what type of photography it is.  The person who commissioned the photo holds the rights unless it's stipulated otherwise in a contract.  So yes, the  photographer can write up the contract with the intention of maintaining the rights to the image, but an educated consumer won't sign such a paper.  Wedding, product, it's all the same.

Yes, if I commission someone to take photos of my wedding, I want to own rights to them, not have him selling them to someone else.  It really makes no sense for a photographer to want to scam someone by inserting a phrase in the fine print that he owns the images and the bride who paid him to take them has no rights to them.