This posting is for educational purposes only, and is NOT LEGAL ADVICE.
In the previous blog (June 28, 2007) I wrote about copyright reform under Bill C-61, through which certain special treatments of photographic works will be repealed. The bill is currently in its second reading. However, because Parliament has broken off for the summer, the new bill is unlikely to become law before the end of the year. I wish to take this opportunity to talk about these anomalies before they are officially repealed.
Generally speaking, the author of a work in question is the first owner. However, under s. 10 of the current Copyright Act, the owner of the initial negative plate is deemed to be the author. Where no negative plate exists (as with a digital camera), the owner of the initial photograph is deemed the author. For example, if you ask a stranger to take a picture of you with your camera, you will own the copyright of that photo.
Further, under s. 13(2), where a photograph has been “ordered by some other person” who pays for the photograph, in absence of a contrary agreement, the person who ordered the photograph is deemed to be the first owner. In plain English, the commissioner of a commissioned photograph, and not the photographer, owns the copyright.
The two clauses above are to be repealed under Bill C-61 for good reasons.
(1) The photographs of you taken by strangers are generally of very little commercial value. Generally these pictures are for your private review only; therefore, the likelihood of a dispute that warrants legal action is minimal.
(2) Sometimes it is difficult to say whether a photograph is “commissioned” or not. This adds uncertainty and costs to commercial transactions.
Generally, yearbook photos, graduation photographs taken at the end of a school year are not considered “commissioned,” and therefore are not applicable under this clause. The same goes for family portraits taken at a photographer’s studio, passport photos, and ID photos. The copyright of these photos belong to the photographer.
On the other hand, where a photographer was retained to take photographs for an event, e.g. a wedding, and the photographer has duly invoiced the fees and the cost of the film, then the person who paid for the invoice would qualifies as the first owner.
In my opinion, photographs, whether commissioned or not, are the product of the photographer’s skills and judgment. The photographer should be duly rewarded for his or her work, and therefore protected under the copyright law. If a person wishes to obtain the copyright in the photograph, the person must duly compensate the photographer, rather than rely on a statutory exception.
