There is a disturbing and growing trend among Canadian photographers to charge usage fees and royalties as an assumed right under the traditional general practice of photography. While they certainly have the right to ask for them or demand them as part of their willingness to do business with you it is important for you to understand that, unless you sign your statute rights away, you are already the sole owners of copyright for any work you commission them to do for you. Unless you sign a contract to agree to pay user fees, or verbally agree to do so as part of your engagement, the photographer does not own the copyright for which the fees are attached. You, and you alone, are the owners of copyright for photography that you commission in Canada. The photographer has no intrinsic right to use, sell or display the images taken under your commission.
How has this movement grown from virtually nothing to the omnipresent state we find today? It started in America. A decade or so ago the Americans decided to change their copyright act 180 degrees from a prevailing international standard ( similar to Canada’s and others’ ) to a system where the photographer owns all rights and leases them to the clients. The clients pay for the original photography and the rights to use it later. This after intense lobbying to government by bodies such as the Professional Photographers of America, of which I am an otherwise longstanding happy member. Many Canadian photographers have started their practices after the American laws were changed. Because of the huge American presence in the media of most of our trade magazines and espousal of industry paradigms, many have assumed that the information from down South applies to us as well. There is no strong movement within the Canadian professional photography industry to counter this misinformation and in fact a large section of that industry is very vocal in its assumptions of erroneous entitlement.
The mismatch of assumption vs. reality is also caused by the fact that virtually none of the proponents have bothered to read the Canadian Copyright Act where they would find that photography is treated differently and separately to other art forms and issues. The general understanding of copyright does not apply universally to photography under our laws. Here is a quote from the Act to cement the issue:
Ownership of copyright
13. (1) Subject to this Act, the author of a work shall be the first owner of the copyright therein.
Engraving, photograph or portrait
(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.
Here’s the link to the Act: http://laws-lois.justice.gc.ca/eng/acts/C-42/
I want to go on record as deploring the practice of user and royalty fees as being greedy and usurious. I believe that we should be charging a fair amount for services rendered and images provided, and bully-for–the-client if he/she can use them to great advantage. A builder would not expect to receive royalties on the profits made by a hotelier on the constant sale of the rooms he built for him.
No, the philosophical paradigm that should apply here is that the client should make a wise decision on which photographer to choose to represent his interests. Some photographers are better than others in conveying the client’s interests and may coincidentally charge more for their services. But whatever the fees, they should be based on a photographer receiving fair value for the effort expended and the background fixed costs. What the client then does with the pictures is nobody’s business but his; if he uses them to great advantage then perhaps he chose his photographer well. Fortunately, for now, at least, Canadian statute law affirms this principle. Beware though; there are proposals in front of Government that have been ( justifiably ) delayed for years that could change all that and confirm a greedier side to the Canadian persona. In the meantime, I suggest you challenge any assertions by photographers who demand usage fees and/or choose another photographer.
This is very enlightening information and appreciated. It changes the discussion around using stock photography and the ongoing usage costs versus commissioning a qualified local photographer to get what you really want/need with one up front fee.
thanks for this great summary Rob. I would suggest that it is not so new a trend and is quite widespread. Like you suggest the need for buyer beware on these agreements is critical. I think too that some of the expectation for ongoing payment stems back to the days before digital and even before photo printing and processing services were widely available. Folks went to a pro photographer to get the shots taken (commercial, weddiing, etc.), and then, by necessity would go back to them for the prints, since there were few other options avaialble. In preparing the prints, the photographer had an opportunity for carry-on work. Gee I am dating myself. But perhaps this set-up an expectation for ongoing payment that is now manifested as useage rights?
Hi Tim, thanks or the comment.
The legal standing of the Film and Print situation is that the photographer owns the actual negative but copyright of the content of the image on it is owned by the client. So the requirement for at least one print or hard copy always brought us the necessary revenue to survive. But that minimum one print was often used in the reproduction of thousands of lithographed copies by way of magazines, brochures, etc. That print became part of the “camera-ready art”, for the publication, the camera in this case being the industrial copy camera. The client always had the right to reproduce the image and they did so as a matter of course, just from that one original print.
When we sold out the negatives or transparencies, they were sold at elevated costs to the client and always included the full copyrights. The elevated costs hopefully made up some of the difference in revenues from the missing print orders. Now, in the digital age we are regularly selling out finished/optimized image files ready for reproduction. Again, one file can be used over and over again, so the comparison is similar. It is true that the lack of print orders generally has often hurt our bottom lines. Because photography is seen from a distance as being so “easy now” and full of promise for anyone to find “true spiritual fulfilment” as a career, there are many new practitioners who have little understanding of business practices and are foundering under the weight of financial realities. The copyright issue is seen as a life-line to their bottom lines and not easily given up if “everyone is doing it”. Their salvations will be in learning how to charge properly for their work without hustling their clients.
Many graphic designers either labour under or perpetrate the same urban legend!
Thanks for shining a light on this particular shadow!
Amazing. My assumption was as the Act outlines it. I take the picture by myself for myself it is my property (copyright) unless I relinquish ownership by distributing it as a stated stock image. You pay me to take pictures for you, the pictures, the medium, electronic or otherwise is yours (copyright) to use as you please. The unhappy part is that some will get away with the alternative.
Question, who owns the photographs one might post to the multitude of photo sites or facebook for that matter?
Gerry
Hi Gerry, Many thanks for the comments.
I need to clarify something for you: when you take pictures and distribute them or sell them as stock images, you definitely still own the copyright and that is the most valid cause for usage fees. There is no ” unless I relinquish ownership by distributing…” It is still a case of you owning the copyright in that case, not the client. The client just buys a license for the usage of your images, potentially forever.
As to your question, you remain the sole owner of the copyright of those posted pix. People may be able to download them and that is one of those things that you have to be prepared to either accept or keep a litigious eye open for. It happens every day. Most web designers are unaware of, or not invoking, the option to disable downloads from websites. But it is possible and apparently easy. If you look at my site, http://www.destrube.com you’ll find it impossible ( I hope) to download any of the pictures on the site. It is quite rare to have that feature set that way; I’m not sure how my web guys did it but I’ll easily refer you to them if you want.
great information. thank you
Thanks so much for this info, Rob!