DancingSamurai.ca

So we took our little 1-month old baby to get photos (yay!) at the local Wal-Mart (boo! – but our neighbour who is a great photographer works there). We got into a little discussion regarding (what else) copyright, and ownership of photos so commissioned.

UPDATE: Wow, this post seems to have made it to #1 on Google on the subject, and is my most popular page this week. I guess I should clarify that the below is regarding Canadian (and I believe UK) law. The default in the US (where many of my visitors are likely from) is actually the opposite, i.e. commissioned photos’ copyrights rest with the photographer in the absence of an agreement otherwise.

Wal-Mart will sell you some great prints for really low prices, but the CD with digital images (although jpgs, not TIFFs/RAW files) costs an arm and a leg (well, not really, it’s a fair price, considering the photographer’s time) — and they only throw in a ‘copyright waiver’ with the CD. But, if I buy just a couple of pictures, the employees were under the impression I wasn’t allowed to reproduce them. I was pretty sure this was wrong.

So, I did some Googling and found The Professional Photographers of Canada web site, which clearly states (quoting the Copyright Act, Section 13):

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.

So how is it that all these places get away with claiming you don’t actually own the copyright in these photos? Am I missing something? Some legal loophole?

I know Canadian photographers hate this, and have been trying to get the copyrights over commissioned photos changed…

There’s also an interesting discussion along similar lines (regarding school photos) at Digital Copyright.ca.

Addendum – In a number of ‘net discussions (pardon lack of linkage), it was pointed out that the law makes a distinction between the owner of the negatives (or original picture if there are none as in a digital photo) and the owner of the copyright in the photo. There really is no question that the photographer owns the original picture / negatives, and I can’t just take them / expect them to produce them. However, it seems they are wrong in claiming that when I order photos taken, and buy only a print or two, that I cannot get those prints reproduced. I am the copyright holder, in the absence of an agreement to the contrary. It is actually the photographer who cannot reproduce the photos without my permission.

Addendum #2 – AmbientLight.ca has a page on Canadian Photography Law in general, including trespassing, your rights when nosy guards/cops confront you, and other valuable reading.

Possibly related posts:

1. Industry adds its voice to the Copyright Debate
2. Copyright Consultation
3. Copyright: What Prentice giveth, the fine print taketh away
4. Digital Education Technologies and Copyright
5. Conference Board Plagiarized Copyright Report: Update