Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic
Copyright and Privacy in Photography
Published Jul 19, 2012
The digital age has drastically changed the way we take and share photographs. Today, anyone, anywhere, can use digital cameras take and store hundreds of photos in minutes. Even phones today double as cameras. Internet services such as social networks provides the perfect platform to easily enjoy photography as a hobby or social tool. With one snap and click, a photograph can instantly be made public to millions of people online. What rights do you as a photographer have in all of these photographs? Are you free to distribute them on the Internet? Are you allowed to take a photograph anywhere, of anyone? What restrictions are there on photographs taken of you? This FAQ tries to answer these questions by shedding light on copyright and privacy laws that apply to photography.
Note: The information provided in this document is of a general nature and does not constitute legal advice. Moreover, it addresses only some issues in the laws that apply to photography, and only under the law in Ontario, Canada. While the laws that apply to photography in other common law jurisdictions (e.g., other provinces in Canada excluding Quebec, England, Australia, the USA) are based on similar principles, they can vary in important respects. If you have questions about how the law applies in a particular situation, you should consult a local lawyer. CIPPIC gratefully acknowledges the support of the Social Sciences and Humanities Research Council in the creation of this FAQ
Copyright in Photographs
The owner of copyright in a photograph enjoys the exclusive right to reproduce, communicate “to the public by telecommunication,” and exhibit her photographs. The copyright owner is – subject to important exceptions – the only person permitted to copy, print, download/upload, or publicly display her photographs.
However, the exceptions are important. The Copyright Act balances this exclusive grant of rights to the copyright owner with other “user rights.” First, even though a photograph is protected by copyright, anyone is permitted to use copyrighted photographs in a fair way for the purposes of research, private study, criticism, review, and news reporting. The fairness of the dealing is weighed by considering the purpose, nature, and extent of the use.
Yes, photographs are considered to be “artistic works” in the current federal law that governs copyright in Canada - the Copyright Act. As with any artistic work, copyright protection only extends to photographs that are both “original” and “fixed” in a tangible form. Generally, most photographs meet these criteria. For more detail, see below.
In the Act, a photograph is specifically defined as including “photo lithograph and any work expressed by any process analogous to photography.” Caselaw indicates that the court will consider any physical construction of a work capable of being subject to copyright.
Copyright protection starts at the time of the image creation. When using a traditional film camera, the copyright of photograph starts the moment the image gets fixed onto the film negative by clicking the camera’s shutter. When using a digital camera, the copyright of the photograph starts when the image is recorded via the electronic image sensor, which is typically a CCD or CMOS sensor chip. For ownership of the copyright, click here.
A photograph recorded onto either film or digital memory is fixed in a permanent form. So film negatives and digital camera images stored on an SD card or computer, that have never been printed into photographs is still protected under the definition of “photograph” within the Act.
According to a supreme court decision in 2004, CCH Canadian Ltd v Law Society of Upper Canada, an author of a photograph must exercise “skill and judgment” for it to be protected by copyright. Some sort of intellectual effort must be apparent - something that can be characterized as more than a mechanical exercise. In Ateliers Tango Argentin Inc. v. Festival d’Espagne & d’Amérique Latine Inc, the court stated that the “skill and judgement” can be measured through elements like the angle of the shot, lighting effects, framing, costumes, location research, duration of the shoot etc. A photograph exhibits originality even by the particular angle and point of view at which the photographer takes it. It is rare for photographs to not meet this minimum threshold of originality. A photograph may fail this test, for example, where a photographer simply recreates a copy of an existing photographic work. Although not binding in Canadian courts, the case of Bridgeman Art Library v. Corel Corp., ruled that exact photographic copies of public domain images could not be protected by copyright in the United States because the copies lack originality. Even if accurate reproductions require a great deal of skill, experience, and effort, the key element for copyrightability under U.S. law is that copyrighted material must show sufficient originality.
Yes, photographs published on the Internet are still protected by copyright. Their use requires the permission of the copyright owner, unless the use is covered by an exception under the Copyright Act such as fair dealing. Internet users often automatically grant a website permission to use a photograph by agreeing to the website’s terms of use. The terms of use for social networking and photo-sharing websites such as Facebook or Flickr for example, usually grant the website a non-exclusive license to use uploaded photographs but not further permission for other website users to distribute them.
Ownership of copyright
The person who is considered the author owns the copyright in photographs. The author becomes the first owner of copyright in the photograph and may assign the copyright to another person. Photograph authorship comes under a special regime in the Copyright Act. Under S. 10(2) of the Act, the owner of the “initial negative or plate” at the time the photograph was “made” is the author. The “making” of the initial negative or plate refers to the exposure of the film by clicking the camera’s shutter. If there is no “initial negative or plate”, then the author is the first owner of the photograph. For analog photography, the author is the person who owns the film negative at the time of exposure. That means it is not necessarily the photographer, the owner of the film at the time of processing, or the owner of the camera. For example, you took the photograph with your own camera, but with someone else’s film in it. You subsequently gave the film to a friend who processed it for you at a later time. The author and the first owner of the copyright would be the person who owns the film negative, not you as the photographer or owner of the camera, nor your friend who developed the photograph. For digital photography, the author is the owner of the digital camera with the CCD or CMOS chip built in to it. Since the built-in chip is the equivalent of the “initial plate”, the author here is really the person who owns the digital camera and not the person who owns the digital memory card or flash drive. Note that as a result of this provision, corporations can be authors and first owners of copyright in photographs. This is a controversial subsection because it departs from the normal standard of copyright ownership for “Artistic Works” under the Act, where the author of a work is the person who created it. Recent attempts at amendment (Bill C-60, 2005; Bill C-61, 2008; Bill C-32, 2010, Bill C-11) tries to grant photographers the same authorship and copyright ownership as other creators. For more on attempts at copyright reform,click here.
For all artistic works, the author of the work is the first owner of its copyright. The author may then assign the copyright to another person. Determining who is the “author” of a photograph will depend on when the photo was taken since the process, as outlined in the Copyright Act, was amended by the passing of the Copyright Modernization Act in 2012.
If the photo was taken before November 7th, 2012:
Before 2012, photograph authorship fell under a special regime in the Copyright Act. When a photo was taken, the copyright, by default, belonged to the person who owned the film negative, or digital camera at the time the photograph was taken. This means that the photographer was not necessarily the author of the photograph.
As a result of this provision, corporations could be the authors and first owners of copyright in photographs. This was controversial since is departed from the normal standard of copyright ownership for “Artistic Works” under the Copyright Act, where the author of the work was the person who created it. This also meant that the term of copyright was different for photos owned by corporations than those owned by natural persons.This was one of the motivations for the 2012 amendment to this provision (see below). (link below to section on copyright reform)
If the photo was taken after November 7th, 2012:
As of November 2012, the author of a photograph is the person who takes the photo.This brings photo authorship in line with the rules governing other “Artistic Works” such as paintings, drawings and sculptures.
Bill C-11, which became the *Copyright Modernization Act,*amended the Copyright Act to repeal the “special regime” that had previously governed photographs. Now photographers are granted the same authorship and copyright ownership as other creators.
Generally, you own the copyright in the photographs you take.
However, you will not own the copyright in any photograph you take in the course of your employment. For more details, click here. (link to questions of employment and commissioned works below)
S. 13 of the Copyright Act creates specific exceptions to copyright ownership in photography.
Employment is one such exception (s. 13(3)). As long as a photograph is taken in the course of employment or apprenticeship, copyright belongs to the employer, even if you use your own camera and film. However, this default can sometimes be altered by contractual agreement. Freelance photographers, for example, will often specify terms in their contracts to ensure that they retain authorship and first ownership of the photographs they take. If the photograph taken in the course of employment is a contribution to a newspaper, magazine, or similar periodicals, then in the absence of any agreement to the contrary, the photographer still reserves a right to restrain publication of the photograph. For commissioned works, click here. (link to the next question of commissioned works)
If the photo was taken before November 7th, 2012:
Before 2012, commissioned works fell under an exception in the Copyright Act (s. 13(2)). 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. For example, if a bride or groom hired a photographer to take their wedding photos and had paid for the service in full, then the copyrightwas owned jointly by the spouses, and not by the photographer.
In the absence of an agreement to the contrary, a customer owned the copyright in any photographs he ordered and for which he paid for. The customer was free to copy and distribute these photographs. For a related Canadian decision, see Lorraine Lapierre Desmarais v. Edimag Inc. and Alys Robi, where the widow of a photographer tried to sue the person who commisioned the photographer on the grounds of illegal reproduction.
In a sense, the default situation was similar to a photo from a photo-booth. The person whose photo was taken in a coin-operated automatic booth was the author of the photo, since payment would usually cover ownership of the negative. However, someone who simply asked for his photograph to be taken or just showed up at a photo session was not automatically granted the copyright. That person must have expressly or impliedly ordered the photograph and then must have actually paid for the agreed amount in order to receive the copyright.
In spite of this rule, it was common practice for customers to sign an agreement that assigned professional photographers copyright to the photographs they take. If the customer wish to remain the copyright owner, be sure to carefully make an agreement and discuss the issue with the customer. Most photographers will agree to let customers remain the copyright owner, as most of their revenue is from the payment of services and purchases of prints, not exploiting copyright in their customers’ images.
If the photo was taken after November 7th, 2012:
The photographer owns the copyright in any commissioned photographs she takes and can use them however she would like. However, the individuals who commission the photographs are able to make personal or non-commercial use of the photos if they have paid for them. For example, a bride or groom that hired a photographer for their wedding can print photos for their house or to give to family members without infringing on the photographer’s copyright.
The photographer and individual commissioning the photos could always change this rule by contractual agreement.
Freelancers should note that even if you own the copyright to the photographs you took for a commissioned work, you cannot freely give or sell those prints or negatives to a newspaper where the subject later come into public light. Doing so may violate your duty of confidentiality, privacy, or other legal obligations and customers could sue to stop your action and recover monetary damages. Also, the photographer could not have licenced advertisers use the photorgraphs to endorse a product. Customers could sue both the photographer and the advertiser.
For photographs taken during employment, click here. (link it to the previous question of employment) For more on attempts at copyright reform,click here. (link to copyright reform question below)
Many professionals have argued that these photography exceptions do not properly reflect the reality of industry practice, which is to contract around the statutory ownership definitions and revert first ownership back to the photographer. There have been many debates over whether these provisions treat photographers unfairly given the absence of similar exceptions for other artistic works. For example, the Canadian Photographers Coalition, representing both the Professional Photographers of Canada (PPOC) and the Canadian Association of Professional Image Creator (CAPIC), was formed to support the extension of copyright fairness to Canada’s working professional photographers. Recent attempts at amendment (Bill C-60, 2005; Bill C-61, 2008; Bill C-32, 2010) all died on the order paper when election was called and parliament dissolved. However, in September 2011, parliament re-introduced a copyright reform legislation, Bill C-11 which is identical to the previous Bill C-32. Bill C-11, The Copyright Modernization Act, includes a provision to award photographers first ownership on commissioned works; a right held by all other creators. In our current legislation, Copyright Act, s.10 gives copyright ownership to the person who owns the film or digital camera, not necessarily the photographer. For details, click here. (link to who owns the copyright in photograph). S. 13(2) of the act gives copyright to customers who have hired a photographer and have paid for their photographs in full. For details, click here. Bill C-11 propose to repeal both s. 10 and s. 13(2). Without s. 10, the person who actually takes the photograph will now be the author instead of the person who owns the film or digital camera used to take the photograph. And without s. 13(2), the photographer will retain first ownership of commissioned photographs. The Bill also created an additional private use provision that allows an individual to use commissioned photographs or portraits for private or noncommercial purposes. Without specific contractual agreement, this new ownership default seem to allow commissioned photographers to use personal images such as family, wedding, or children portraits for purposes unknown and unintended by the subjects. A photographer could publish these commissioned photographs in a magazine, sell them to collectors, or even exhibit them in a gallery without having to first obtain the subject’s consent. These changes would seem to favor the knowledgeable photographer, placing an unfair burden on the inexperienced consumer. However, freelancers should note that even if you own the copyright to the photographs you took for a commissioned work, you cannot freely give or sell those prints or negatives to a newspaper where the subject later come into public light. Doing so may violate duty of confidentiality, privacy, or other legal obligations and customers could sue to stop your action and recover monetary damages. Also, the photographer could not have licenced advertisers use the photorgraphs to endorse a product. Customers could sue both the photographer and the advertiser.
Copyright Term
Copyright protection in a photograph generally lasts for the life of the author plus fifty years following the end of the calendar year in which the author dies. For example, if the author died on May 1st, 1950, then the copyright term would end on December 31st, 2000. For anonymous and pseudonymous works, the term is one of the following, whichever ends earlier. The term is the rest of the calendar year when the photograph was first published plus fifty years following the end of that calendar year, or the rest of the calendar year of the first making of the photograph plus seventy-five years following the end of that calendar year. For example, if an anynomous photograph was made on June 30, 1949 and then published on June 30, 1950, then the copyright term would either end on December 31st, 2000 or December 31st 2024 according to the above two calculation methods. Since the first calculation of December 31st, 2000 ends earlier, it is the calculation that the act will recognize. If during this term, the author becomes known, then the term would be re-calculated with the general rule of author’s life plus fifty years. If there are more than one anonymous authors, and one or more of the authors becomes known during the term, then the term would be re-calculated with the general rule of author’s life plus fifty years with the author who dies last. However, when a corporation is the author, the term of copyright protection is generally shorter. In this case, protection in an analog photograph lasts for fifty years following the end of the year in which the negative is created – usually the time at which the photograph is taken. For a digital photograph, where there is no negative, the fifty-year time period begins when the photograph is first taken. After copyright protection ends, a photograph becomes part of the public domain. Anyone can then freely copy, use, distribute, or display it. For more on photographs in the public domain, click here.
Determining whether or not a photograph is in the public domain can be a challenging task. Canada has no mandatory copyright registry, so the task requires figuring out whether a photograph's author has died, and, if she has, the year in which she died. A photograph becomes public domain fifty years after the year of death. For copyright term, click here. This task is easier for photographs authored by corporations. In this case, the fifty year period of protection starts running when the photograph is taken, not when the author dies. Determining whether the photograph is in the public domain only requires determining the year it was taken. The exception to this, is when the holder of the majority voting shares of the corporation is a natural person, then you would use the general rule of author’s life plus fifty years following the end of the calendar year of death. There is another exception under s. 10(1.1) for photographs not already in the public domain on January 1, 1999. Both of the following situations would lead back to using the general rule of author’s life plus fifty years. If the copyright holder was alive on January 1, 1999, and was a freelancer or worked through a company that he controlled, then the general rule of author’s life plus fifty years apply. If the copyright holder had been dead on January 1, 1999, and the photograph was still protected by copyright at that time, then the general rule of author’s life plus fifty years also apply (instead of the old rule of counting 50 years from the original shooting).
Individual Rights – Waivers
You do not generally need permission to photograph a person for the purposes of personal photography. However, for commercial activities, privacy protections usually require consent. Privacy protections set out in the federal Personal Information Protection and Electronic Documents Act (PIPEDA) apply to personal information collected in the course of commercial activities. Any photograph in which a person is identifiable conveys personal information. Thus, in most cases, PIPEDA requires a photographer to obtain consent from anyone that will be identifiable in a photograph. This requirement does not apply to photographs taken solely for journalistic, artistic, or literary purposes.
You generally need permission to distribute a photograph of a person, even for the purpose of personal photography. For commercial activities, PIPEDA requires consent to distribute photographs depicting identifiable individuals, similar to its requirement for collecting personal information. Again, this requirement does not apply to distribution for journalistic, artistic, or literary purposes. However, provincial and common law privacy protections still apply. For all activities, whether commercial in nature or not, provincial and common law privacy protections limit the distribution of photographs. Any court may recognize a lawsuit based on a violation of privacy under the common law. As well, British Columbia, Manitoba and Saskatchewan have privacy legislation that specifically gives individuals the right to sue for privacy breaches. In Quebec, privacy is protected by a person's “right to respect for his private life” under the Quebec Charter. Distributing an identifiable image of a person without consent is likely to violate one or more of these privacy laws.
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. This includes online distribution. Courts have found that even photographs posted to Internet newsgroups without permission may violate privacy rights. When obtaining permission from people depicted in your photographs, you should clearly inform them about how you intend to use the photographs. For example, let your subjects know whether you intend to post the photographs on Facebook or publish them in a commercial magazine. A signed “waiver” is best in order to fully protect yourself, but, in most cases, verbal permission should be sufficient to post personal photographs to the Internet.
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. Any commercial use which “trades off” of their image and takes advantage of it for profit may be considered an unlawful “appropriation of commercial personality.” Be sure to obtain permission from these subjects before using photographs of them commercially.
Most photographs in which you are identifiable disclose personal information about you and are protected by the federal PIPEDA. These laws restrict the way in which commercial organizations may use or distribute your photographs. For example, although it is standard practice for a photo finishing lab to inspect the photographs it develops, a photo lab is not permitted to otherwise use or distribute these photographs. Certain exceptions do apply. For example, the photo finishing lab may disclose photographs to a law enforcement agency where the lab believes the photographs demonstrate unlawful behaviour.
Liability for photographing intangible property
All photographs are, fundamentally, reproductions of the scenes within their frames. In some cases, 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. Common sense provides a useful guideline here. If a billboard advertisement is visible only in the background of your photograph, it is unlikely that you reproduced a substantial part of the work. However, if you take a close-up photograph of artwork displayed in a private gallery, you may run afoul of copyright. The Copyright Act does provide specific protection for the incidental inclusion of another work, such as for a billboard advertisement visible in the background of your photograph. Any work that “incidentally and not deliberately” includes another work does not infringe copyright. Additionally, the Copyright Act explicitly permits architectural works such as buildings to be photographed without infringing copyright.
You are unlikely to infringe trade-mark law by photographing logos or other trade-marks. Trade-mark infringement only occurs when a trade-mark is used in a way that associates it with one's own wares or services. As long as you do not use photographed trade-marks to advertise or sell your own products or services, you are unlikely to infringe upon anyone else's trade-mark.
“Fair dealing” may provide additional protection, even where your photographs substantially reproduce another work and do not benefit from other exceptions. Your photograph may not infringe copyright where your use of the copyrighted work is fair and for the purposes of research or private study, criticism or review, or news reporting. Whether your dealing is considered fair, so as to benefit from these fair dealing exceptions, depends on the purpose of the dealing, character of the dealing, amount of the dealing, alternative to the dealing, nature of the work, and the effect of the dealing on the work. For some purposes, additional requirements also apply. Foremost, to benefit from the exceptions for criticism and review or for news reporting, you must attribute the source and author of the work. Note that Bill C-32 had proposed to add parody, satire, and education as new purposes for fair dealing under the Copyright Act. This is an attempt to create more flexibility for fair usage of copyrighted works, which has remained restrictive under Canadian copyright law for many years.
Liability for photographing real property
You may 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.
It is generally permissible to 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. Courts recognize that “[a] person's reasonable expectation of privacy in his or her own home is ordinarily very high.” It is best not to photograph inside windows or backyards, for example, without permission.
Photographs of private property sometimes show other copyrighted works in the background, such as signs and billboards. This is permissible as long as the works are included “incidentally and not deliberately.”
Resources
Legislation
Further Reading
- Ysolde Gendreau, Axel Nordemann & Rainer Oesch, Copyright and photographs: an international survey (London: Kluwer Law International, 1999)
- David Vaver, Copyright Law (Toronto: Irwin Law, 2000)
