An experiment in photograph copyright

My daughter goes to elementary school, and this is the time of year when we get photos.

Last year, there were some problems with results - some of the parents were unhappy with some of the things the photographer had done, so I went back and looked properly at the photos we'd bought then. One of the things I noticed was that there was a copyright notice on the back which claimed to prohibit copying. The notice didn't actually state who owned the copyright, but certainly implied that it wasn't the person who had the print. Here's the wording (the original is all capitals):

Professional images are copyright protected
Les image professionelles sont protegee par copyright
Do not copy
Prohibida par reproduccion

I suspect that this will make it extremely difficult for me to exercise my right (as the copyright holder) to get copies of these photos made.

So I mentioned this to the people who were dealing with the photographers (although I have no idea whether it was actually mentioned during the negotiations). In the end, the school/PAC decided to go with the same photographer this year, and this year I made sure to carefully review all the paperwork involved, mostly to ensure that my wife and I did nothing to assign copyright.

Photograph copyrights are interesting because who holds the copyright depends on the contractual arrangements. As I understand it (and I'm not a lawyer), if a photographer takes a photo that is their own idea, they hold the copyright. If a photo is commissioned (which seems like it applies in this case), the person who commissioned it holds the copyright.

So now I'm waiting with interest to see what we get back.

My suspicion is that a lot of professional photographers think that they hold the copyrights even for commissioned works. If people who's living depends to a great extent on copyrights don't understand the rights they do and don't have, what hope do the rest of us have ?

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professional photographers DO hold the copyrights

from the act:

10.(2) The person who
(a) was the owner of the initial negative or other plate at the time when that negative or other plate was made, or
(b) was the owner of the initial photograph at the time when that photograph was made, where there was no negative or other plate,
is deemed to be the author of the photograph and, where that owner is a body corporate, the body corporate is deemed for the purposes of this Act to be ordinarily resident in a treaty country if it has established a place of business therein.

Since they own the film/original they are the author. Therefore they also own the copyright unless they do something contractually to relinquish it.

Remember S-9

There was a Senate bill S-9 which never passed that dealt with this issue alone. Bill C-60 then had the same provisions.

The core of S-9 stated:

" 1. Section 10 of the Copyright Act is repealed.
2. Subsection 13(2) of the Act is repealed."

While you mentioned section 10 of the Copyright Act, you forgot Subsection 13(2) which states:

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 the copyright.

This is where the whole commissioned photography concept came in, and it was intended to give those hiring photographers some additional negotiating rights with the photographer.

Your comment proves Chris' point even stronger, which is that the current copyright act is not at all reasonable to expect anyone to understand. Even though we have debated these specific clauses on this forum multiple times over the years, it is still not fresh in our minds.

Until the Canadian Copyright Act is "clarified and simplified", it is unreasonable to expect anyone to understand and obey it. It is also a bad joke for extremist groups like CRIA and and ESA to suggest they can teach preteens these rules which dedicated copyright lawyers (in theory, adults) don't understand.

Addition based on something I wrote to a photographer who sent me a private email.

It is the opinion of most lawyers I have spoken to, including those representing professional photographers, that the first holder of copyright in a commissioned photograph rests with the person who commissioned it. Changing this was the intention of S-9, and was included in Bill C-60, neither of which passed. It was clear that everyone involved in S-9 and Bill C-60 believed that copyright rested with the person who commissioned the photograph, otherwise they would not have stated this in their speeches when trying to change this rule which they didn't think was fair. You are welcome to read the transcripts from the S-9 hearings to confirm this. I was in the audience of many of these speeches.

As to the labs and reprint shops who refuse to reprint professional photographs: just because they refuse to reprint doesn't mean that this is the law. Most Canadians don't understand what Canadian copyright law says, which is in fact the core point that Chris was making in his posting. All they know is that they are more likely to have legal threats from professional photographers than from their regular patrons. Who is correct about their interpretation of the law isn't really a major factor in this risk assessment.

Free/Libre and Open Source Software (FLOSS) consultant.

School photos, copyright & yearbooks.

This is really interesting. I actually started thinking about this the other day when a friend of mine asked what would happen if she scanned a photo of me from our yearbook and put it on Facebook.

My instant reaction was that she's not allowed to do that because (a) it's not a photo of her (breach of privacy) and (b) she doesn't own the copyright to the photo (breach of copyright). But who does own the copyright? It has been years since I've been in highschool, and I don't remember needing to sign a release for my photo to be taken or to be used in the yearbook. When the photo was taken, the copyright legislatively belonged to me (provided there wasn't a contract I or my parents signed, and I simply don't remember it). It seems strange, then, for me to be the owner of the copyright of my photo, but to not have signed anything to allow the use of the photo in the yearbook.

Who comissioned the photographer, not who purchased a copy...

You may have paid for copies to be made, but my guess is that the contract would have been signed between the school and the photographer. You wouldn't be the copyright holder: either the school or the photographer would be, depending on the details of that contract.

I guess I don't think the commissioned photography aspect is all that important, and wouldn't be bothered if that section of the act was amended. To me the important photography questions relate to equipment loans (Who is the copyright holder if someone takes a picture of you on your own camera), and the term of copyright (I believe it needs to be 50 years from the date it is taken, not 50 years after the death of the unknowable person who took the photo).

Welcome to the DCC site, Julianna! You may also want to BLOG here as well, pointing people to the other places that you BLOG given many of the issues you write about as a visual artist are of major interest to the folks who frequent this site.

Free/Libre and Open Source Software (FLOSS) consultant.

What is it to commission a work?

Thanks, that is interesting. Seaming that would imply that you should be able to demand that the photographer give you the negatives.

On the other hand, does commissioning a work (of any sort) not also imply that you are compensating the artist for their time. You should therefore be paying the photographer for his time regardless of whether you like the pictures or not. However, as we all know, if you don't like your kids picture, you don't have to pay for it. Therefore, do you really have an argument that the picture was commissioned. You provided him the opportunity to practice his art. But unless you agree to pay him before hand, I don't think you have actually commissioned anything.

I agree copyright is a convoluted mess. As it currently stands the only ones who can definitively tell you where its bounds are is a judge.

but the negatives are tangible property

I don't see any argument for changing the ownership of the negatives. If I commission the work, I hold the copyright in the resulting work, but the photographer would still own their tangible property (i.e. the negatives).

Of course, they wouldn't be able to make any copies without my permission. It's exactly the same as when I buy a CD (but not the copyrights) from a record company - I own the physical CD but they hold the copyrights. Despite what they may like you to believe, it is not their CD :-)

As for your other argument, that really comes down to the wording of the contract. Mots of them seem to clearly be of the form "I'm buying a photograph, with the option of my money back if I don't like it". I've yet to see one with any mention of the time involved. I would expect that type of contract to take the form "I'm paying for 15 minutes of your time to create some photographs for me". No doubt there's plenty of room for lawyers to argue either way here :-)

And finally, I really will dig out the exact wording this week (I was away from home last week).

Actual text added to posting

I finally dug out the actual text and updated the posting with it.

In the process, I noticed that my other daughter's presschool pictures are even worse - they say "Copyright Bestway 2006", which is completely untrue. This is actually a case where I feel that the word "theft" is accurate - I have actually had my "intellectual property" taken away from me by Bestway.

Here we go

We got the proofs yesterday, and they have the same notice on the back (it looks like it's part of the Kodak paper they use).
Talking to my wife, we agreed that we should raise the issue before we order prints, so I went to their website and submitted my question to the local office (this is a national company).
Here's my question :

I recently got the proofs for my daughter's photos.

Looking at last year's, I have a concern.

The paper you used to print the photos last year contains misleading notices :
Professional Images are Copyrighted. Do not copy.

As I would hope that you know, subsection 13(2) of section 10 of the Copyright Act states that :
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 the copyright.

As I have not (and would not) signed any copyright assignment, and I commissioned these photos, the copyrights are held by me. The notice that was present on the back of last year's prints is likely to cause me problems in exercising my rights as the copyright holder.

Thus I would like your reassurance before I order that my prints will not include any such notices.
I considered waiting until I received the prints to raise this issue but thought it would it be better to raise it up front to prevent you wasting materials.

Note that I will be publishing your response on my blog and passing it on the PAC at the school.


Chris Brand

Re-reading my comments there's a bit of a subtlety in that I haven't yet paid, but I would have to send payment with the order, so that doesn't seem to be a big deal.

School board.

You didn't commission the photographer. The school or school board did. You should be contacting them to find out what their contractual arrangements were.

Free/Libre and Open Source Software (FLOSS) consultant.

Maybe so...

I've got the form to place the order. They expect payment with the order (cheques payable to the company, not the school or school board). I'm the person who gets the prints in the end.
It's certainly arguable that I'm the commissioner.

It'll be interesting to see what they say, anyway.

Commissioned photography vs commissioned printing

If anyone hears a case about this I would be very interested, but I suspect the argument would be that you were commissioning printing of negatives and not commissioning the photography -- with the latter being the part that relates to copyright, not the former.

I am pretty convinced that this section of the copyright act will get repealed. What I'm pushing for is that these amendments come with clarification of the term of copyright to a fixed 50 years rather than everything defaulting to life-of-unknowable-photographer plus 50 years.

Free/Libre and Open Source Software (FLOSS) consultant.

A reply

I received an email today saying that their head office were dealing with the matter, and asking for my mailing address.

Response from the company

I got the promised letter. Below is most of it. I didn't transcribe the first and final paragraph or the last part of the penultimate paragraph.

The law on copyright ownership is rather complicated, and we are aware of the provisions of the Copyright Act cited in your letter. Our understanding is that the provision to which you refer is a narrow exception to the general rule, which is that the copyright in photographs is owned by the photographer. The exception applies only to "commissioned" works, where a customer might, for example, hire a photographer to capture specified images and purchase the originals (the negatives) of those images.

We believe that to order a commissioned work is not the same thing as to place an order for a portrait package offered by Lifetouch. The copyright in Lifetouch school photos, which applies to reprint rights, belongs to Lifetouch as the originator of the image. the copyright remains the property of Lifetouch, even if our customers purchase portrait prints.

Lifetouch committs significant resources to train our photographers, develop photography products, services and equipment to produce the best pictures in the industry. the product purchased by the Lifetouch customer is the packaged prints. Our revenue is generated form selling prints and we are able to sell top-quality portaits at a reasonable price because we hold the copyright. As you noticed, we print our portraits on industry-standard professional paper that includes a 'do not copy' watermark.

I would also like to add that, from time to time parents desire to use their children's portrait on non-traditional items such as cake tops or photo mugs, items that are not currently part of our business. When parents contact us to make such a request, we ordinarily consent to the use of the image on a one-time, limited purpose basis for these types of items.