Canada: Not All Photographs May Be Used For Advertising Purposes

It is often tempting to a business to use photographs gathered from unknown sources for written or Internet advertisement. It is imperative to understand that there could be copyrights associated with these photographs, which may be owned by the photographer or by another party. Moreover, the individuals represented in the photograph could be protected by a right in respect to the use of their image. Here is an overview of the various legal principles to consider relating to this issue and a few examples taken from recent case law.

1. Pursuant to the Copyright Act, the client who orders and pays for the photograph owns the copyright, which includes the right to reproduce it for commercial purposes.
2. Furthermore, the photographer who took the photograph may, in some cases, own the copyright. The photographer may own all the rights in the photograph, or only part thereof may have been retained by the photographer pursuant to the contractual agreement with the client.
3. The photographer also holds a moral right on all original photographs (please note that there are a few exceptions to that principle which will not be addressed). As such, the author has the right to be recognized and identified as the creator of the photograph, if he so wishes. He or she also holds the right to control any modification to his or her work, such as the removal of parts of the photograph.
4. Regardless of who owns the copyright, every person has the right to control the use of his or her image for commercial purposes.

A well-known artist became aware that a hairdressing salon was using a picture of him with an "afro" haircut for advertising purposes. The advertisement read: "Problem with your look? Here's the solution!". Unhappy to be an unwilling participant in this advertisement, the artist decided to take legal action against the salon. The evidence did not support the claim that the artist owned that particular photograph and, consequently, the judge rejected the segment of his legal motion based on the protection of the author's rights. However, the judgement was rendered in favour of the plaintiff because the artist held the legal right to associate his image and reputation to any and all commercial purposes of his choice. Considering that no authorization had been given by the artist, the hairdressing salon was forced to pay damages in the amount of $5,000., with interest and costs.

In another case, a furniture store published 160,000 copies of an advertisement flyer which contained a photograph created by a photography agency. Prior consent from the agency had not been obtained. Moreover, that same agency had already granted exclusive rights in that particular photograph to one of the store's competitors. The agency took legal action against the owner of the furniture store to claim an indemnity for the unauthorized use of the photograph and to claim damages for the inconvenience caused to the competitor to whom the rights in the photograph had already been transferred. The Court held that the unauthorized use of the photograph was contrary to the provisions of the Copyright Act. As a result, the furniture store was forced to pay damages in the amount of $12,000., with interest and costs.

In a third case, there was litigation between a photographer and a publishing house. The right to use the photograph for commercial purposes was recognized as resting with the publisher who legally owned the copyright and not with the photographer. However, the Court recognized that the publishing house had to identify the photographer because the photograph was considered an "original work". "Original work" is defined as an image in which a creative effort was involved. This principle could affect all commercial use of photographs considered original works according to the "creativite effort" criterion stated above. In such situation, the name of the photographer should be clearly indicated, even if the photographer does not own the copyright in the photograph.Please note that photographs of objects taken without any creative effort are not considered original works.

In view of the foregoing, it is imperative to examine the following questions before using a photograph for commercial purposes:

1. Who holds the copyright in the photograph? A business may not use a photograph for commercial purposes if it does not hold the copyright. In order to do so, prior authorization must be obtained from the holder of the copyright.
2. If the photograph can be defined as an original work, there is a possibility that the photographer will requirehis or her name to be printed with the photograph, even if he or she does not own the copyright. Please note that this choice is exercised by the photographer.
3. Regardless of who holds the copyright, if an individual is represented in the photograph, his or her prior authorization is required to use his or her image for commercial purposes. This principle applies to everyone and more particularly in the case of public figures. In this last case, damages awarded may be substantial.

Adhering to these simple guidelines will undoubtedly be a wise precaution.