Privacy and Photography

Disclaimer: The following is legal information, not legal advice. The following legal information is no substitute for sound legal advice from a lawyer.

Artistic photographers have a wide degree of freedom to take pictures in public, and in most cases, they will own the copyright in their work. The following information about privacy and photography was compiled by the Canadian Internet Policy and Public Interest Clinic based out of the University of Ottawa. We have reposted their work under their Creative Commons Attribution-NonCommercial 2.5 Canada licence.

Photography, copyright, and privacy

1. Who owns the copyright in photographs?
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.

2. Who owns the copyright in photographs I take?
Generally, you are the copyright owner of photographs you take using your own film or digital camera. However, you will not own the copyright in any photograph you take with someone else’s film or digital camera.

Also, you will not own the copyright in any photograph you take during employment or for commissioned works where the clients have paid in full for your service.

3. Who owns the copyright in photographs I take for commissioned works?
Commissioned works is another exception under the 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 is considered the author and owns the first copyright in the photograph. For example, if a bride or groom hired a photographer to take their wedding photos and has paid for the service in full, then the copyright may then be owned jointly by the spouses, and not by the photographer.

In the absent of an agreement to the contrary, a customer owns the copyright in any photographs he ordered and for which he paid for. The customer is 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 is similar to a photo from a photo-booth. The person whose photo is taken in a coin-operated automatic booth is the author of the photo, since payment would usually cover ownership of the negative. However, someone who simply asks his photographs to be taken or just showing up at a photo session does not automatically grant him the copyright. That person must expressly or impliedly order photographs which he will be paying for, and then must have actually paid for the agreed amount in order to receive the copyright.

In spite of this rule, it is common practice for customers to sign an agreement that assigns 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.

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.

4. Do I need someone’s permission to photograph them?
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.

5. Do I need someone’s permission to distribute photographs of them?
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, there is often overlap between commercial activities and artistic purposes (taking a picture that will be exhibited and possibly sold), and currently the law is unsettled as to how much of a commercial aspect to an artistic purpose is required before PIPEDA applies. The best thing to do for now is to try to obtain consent to take someone’s photo.

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.

6. When do I need a waiver or release from someone I’m photographing?
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.

7. Can I take photos of public figures, like athletes and performers?
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.

8. Do I enjoy privacy rights in my photographs?
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.

9. Can I take photographs of things that are themselves subject to copyright, like performances, works of art, and buildings?
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.

10. Can I take photos of corporate logos and other trade-marks?
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.

11. Can photographs containing substantial parts of copyrighted works be permitted under fair dealing?
“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.

12. Can I take photographs of public property, like parks and public monuments?
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.

13. Can I take photos of private property?
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.”