In Canada, who owns the copyright to a photograph that has been taken by a hired photographer?

Question

According to The Canadian Copyright Act (R.S.C., 1985, c. C-42)

Section 10.2.a states:

(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

is deemed to be the author of the photograph... [irrelevant information removed for clarity]

Section 13.2 states:

(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.

[Italics added]

A few follow up questions:

1a. Would this mean that without an agreement to the contrary, the customer would be deemed the author & owner? (Owner per 13.2, owner is the author per 10.2.a

1b. Does 13.2 provide the photographer with a legal way to retain ownership of copyright?

Answer

The "agreement to the contrary" needs to be very explicit and carefully worded.

The default assumption in fields deemed to be graphic arts (traditionally, things like engraving and lithography, but under which photography also falls by law) is that the contribution of the graphic artist is of a purely technical nature. In other words, one is normally deemed to be nothing more than a "camera operator", someone who merely records what is -- like an engraver or lithographer who copies an illustration for use in print, it is assumed that you are merely a walking set of technical skills with a tool kit.

The reason it needs to be carefully worded is because it is very difficult, under Canadian law, for a person to relinquish their natural copyright in a work. It is impossible, for instance, to release any work into the public domain voluntarily -- the best you can do is to grant license to everyone for every purpose, gratis, and without requirement for attribution, but that license is revocable at will. Similarly, assignment of all rights in a work (which the customer holds naturally under commission) is difficult to make in an irrevocable manner, so the language around the agreement needs to be clear regarding both the intent as to who will hold copyright and as to who has creative control in the production of the image.

If it's not clear that you, as the photographer, are acting in the capacity of a creative artist, then even an explicit agreement that you will hold copyright in the resulting work may not, in fact, be legally binding. The intent of the law surrounding the alienation of natural copyright is good; the fact that photography is deemed in the Act to be little more than a technical process in the reproductive arts is not so good.

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