Photographers Rights

Once or twice a month, we receive calls from photographers, regarding unauthorized use by a third party of one of their photographs. These calls often relate to a digital image that the photographer has posted online (e.g., on Facebook), that has subsequently been incorporated into a commercial website.Under Canada’s Copyright Act, a photograph is an “artistic work”, and is subject to protection for the life of the author plus 50 years. Copyright includes the sole right to produce or reproduce a work or any substantial part in any material form whatever. It is an infringement of copyright for any person to do, without the consent of the owner of the copyright, anything that only the owner of the copyright has the right to do.In the event of infringement of copyright in a photograph, the photographer has three years within which to seek relief from the Court. The Copyright Act provides for remedies in the form of an injunction to stop use of the photograph and damages for what the copyright owner has lost. A professional photographer may be able prove such loss through evidence of prices paid for images in the past, but an amateur photographer generally has no history of past sales. In addition to damages, the copyright owner can seek part of the profits the infringer has made from the infringement. However, it may difficult to show that the use of a photograph directly resulted in any profit; for example, a photograph of an eagle used on the website of a plumbing company. Fortunately, the Copyright Act also provides for “statutory damages” of not less than $500 and not more than $20,000, where the infringement is for commercial purposes. For a professional photographer, the unauthorized user may be their own customer. Unless the parties agree otherwise, when a photograph is commissioned by a customer, the photographer owns the copyright in the photograph and the customer may only use the photograph for private or non-commercial purposes. Under the Copyright Act, photographers also have “moral rights”, which include the right to maintain the integrity of the work and the right to be named as the author of the work. Moral rights may be infringed where a photograph is altered (e.g., cropped) in a manner that is harmful to the photographer’s reputation or where the photographer’s name is removed from the image.A summary of the law in this area would not be complete without a mention of the powerful “fair dealing” exception under the Copyright Act. Fair dealing for the purpose of news reporting does not infringe copyright if the source and, if available, the name of the photographer, are mentioned. In the case of Allen v. Toronto Star Newspapers, Allen was a professional photographer who had taken a photograph of politician Sheila Copps. A number of years later, Ms. Copps ran for the leadership of the Liberal Party and the photograph was used by the Toronto Star without permission. The Court held that the purpose of the reproduction was to aid in the representation of a news story relating to the leadership aspirations of the politician and, as such, fell within the fair dealing exception.