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Copyright for Photographers – The Basics

January 22, 2012 Articles, Tips & Tricks

You’re going through your stash of event photos and trying to figure out just what to do with them. Should you try to sell some prints? Should you try and see if a magazine might be interested in paying a licensing fee to use them in print? Can you use them in that upcoming book you’re putting together about Burlesque?

Yes….and no….well maybe, it depends. The world of copyright and usage is a confusing maze of laws, protections, and rules that are constantly being written and rewritten, making it hard for the average photographer to know where they stand in the pursuit of their craft.

In this multi-part series, we’ll explore the confusing world of copyright as it relates to photographers and the selling and licensing of performance and event photos; the confusing world of editorial, website, and tv/film contracts; and photography contests.

(Please note, copyright legislation is amended periodically and this series relates to the law as of November 7, 2012.)

Copyright

All Canadian creators of art automatically own the copyright in their original (not a copy of an existing piece) personally created works in a fixed (physical, visual, electronic, etc.) form. According to the Canadian Copyright Act:

The author of a photograph is the person who was the owner of the initial photograph when it was made, if there was no negative or plate, or the owner of the initial negative or plate at the time they were made.

Copyright runs for the length of the creator’s life, the remainder of the calendar year in which the creator dies, and a period of 50 years following the end of that calendar year.

Work For Hire (freelance or employment)

There used to be one exception – in the case of commissioned photography (work for hire), you must have an agreement between you and the client stating who will own the copyright once the work has been paid for. Without this agreement, the copyright is owned by the client. As of November 7, 2012, this exception no longer applies and the photographer owns copyright on all work for hire photography.

Assigning Copyright

You do have some additional control over your copyright. You can assign or license the copyright to your photography, in whole or in part, subject to whatever limitations you negotiate, as long as you have all the terms in writing with both parties’ signatures. We’ll talk about this more when we delve into licensing and contracts.

Keep in mind that although your artistic work is copyrighted – your final photographic piece as it was composed, edited, and produced – the idea behind the photo isn’t. Just like a writer cannot copyright the overall idea of a “woman meeting a man in a coffee shop and falling in love” – or the entire romance genre would collapse – your idea of a photo of two elephants with their trunks entwined is not copyrighted. However your representation of that idea, the final art piece that can only be produced using your skills and vision, is copyrighted. For photographers, this can include digital files, negatives, or plates, depending on how you shoot.

Moral Rights

As a creator of original work, you have also automatically have moral rights to that work. You don’t have to do anything to get these, like sign paperwork or file materials with the government, and they include:

  • The right to have your work credited with either your name or pseudonym and the right to remain anonymous.
  • The right to the integrity of your work (no excessive manipulation such as cropping, editing, etc.)

Artists cannot sell their moral rights – nor should they – but that doesn’t mean that they can’t be waived. If you choose to waive your moral rights, you lose the right to enforce them at a later date if you decide your artwork has been edited too much or represented negatively.

Your moral rights are not connected to your copyright. If you assign copyright you will still retain the moral rights to your piece unless you waive those rights as well. This is important to keep in mind when you start dealing with contracts and looking at the terms on websites when sending in photos for competitions.

Term of rights

As with copyright, moral rights run for the same term as the copyright of the piece, but after the creator’s death:

  • First, the moral rights pass on to the person to whom the creator bequeaths them.
  • If there is no specific bequest on moral rights, they pass on to the person to whom copyright is bequeathed.
  • If there is no person to accept the moral or copyrights, they pass on to whom the estate is bequeathed.
Exceptions

The Canada Copyright Act recognizes several exceptions where copyrighted material can be used without being considered a violation of the copyright:

Fair Dealing

  • Criticism and Review – as long as the source and name of the author or performer are mentioned.
  • News Reporting – as long as the source and name of author or performer are mentioned.

Educational Institutions

  • Reproduction for instruction – make a copy of the work for projection for the purposes of education or training on the premises of an educational institution without motive of gain.
  • Reproduction for examinations – reproduce or telecommunication a piece of work to the public situation in an educational institution for a test or exam without purpose of gain.
  • Exemption from copyright infringement does not apply if the work reproduced is commercially available in a medium that is appropriate for the purpose.

Now that you have a general sense of how copyright works, you need to learn how to apply these rules when working with contracts, dealing with contest terms of agreement and image licensing. Before you can do any of these things, you’ll need to shoot your subject matter. Whether in the studio or at a live performance, it’s important for you to know how to deal with rights, both yours and your subject’s so that everyone gets exactly what they need out of the experience.

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