©opyright
General Copyright information: Photographs
In the Copyright Act a photograph is protected within the category of artistic work. A "photograph" is defined as including "photo-lithograph and any work expressed by any process analogous to photography". The expression of the photographer's idea is recognized as an artistic work by the Copyright Act. Even if there is no plate or negative, for example, with a digital image, there is still a photographic image protected by copyright.
Generally, having copyright in a photograph means having the sole right to produce and reproduce the photograph or any substantial part of the photograph in any material form. It also includes the right to publish the photograph, if unpublished, and the right to authorize any of the preceding acts.
The author of a photograph is the person who owned the initial negative or initial photograph (if there was no negative as in electronic photography) at the date it was made. The author can be an individual or a corporation. For example, a corporation can be the owner of the initial negative and therefore the author of the photograph.
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. Prior to July 1, 1998 it did not matter whether the photographer was actually paid the commission fee. Effective July 1, 1998 the photographer's fee must be paid before the copyright will belong to the person commissioning the photograph. If the fee is unpaid the copyright belongs to the photographer:
13(2) Where, in the case of an engraving, photograph or portrait, the plate or other original was ordered by some other person and was made for valuable consideration, and the consideration was paid, in pursuance of that order, in the absence of any agreement to the contrary, the person by whom the plate or other original was ordered shall be the first owner of copyright.
Another exception applies where a photograph is created during the course of someone's employment. The Copyright Act provides that where the author of a work is employed by someone and the work is created in the course of that employment, then the employer is the first owner of the copyright in the work. The employer and the photographer can change this by contractual agreement.
The term of protection for photographs depends upon who is the author. There are three possible terms of copyright protection for a photograph:
(i) First, where the author is a natural person, the term of protection will be the remainder of the calendar year in which the author dies, and for 50 years following the end of the calendar year.
(ii) Second, if the author of the photograph is a corporation in which the majority of voting shares are owned by a natural person who is the author of the photograph (e.g. a commissioned photograph) then the term of copyright protection will be the remainder of the calendar year in which the author dies, and for 50 years following the end of the calendar year.
(iii) Third, if the author of the photograph is a corporation in which the majority of voting shares are not owned by a natural person who is the author of the photograph (e.g. a commissioned photograph) then the term of copyright protection will be the remainder of the year of the making of the initial negative or plate from which the photograph was derived or, if there is no negative or plate, of the initial photograph, plus 50 years.
Information about the Copyright Act can be obtained from Canadian Intellectual Property Office.
This information is to be considered solely as a guide and should not be quoted as, or considered to be, a legal authority. It may become obsolete without notice. Authority must be found in the Copyright Act, the Copyright Regulations and in the decisions of the Courts interpreting them.
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© Her Majesty the Queen in Right of Canada, 1998
Copyright Chair: Brian Boyle MPA, SPA, FPPO