Help! Advice needed!

[shutter21]

I really need some direction here!


I've been reading about the Canadian Copyright Law regarding photography. On CAPIC (http://www.capic.org/resources.html?screen=bp&t=bp_section&chapter=What+You+Sell) it says if a photographer is commissioned for a work, the person/company owns the copyright once they pay for it in full. If they don't, the copyright is with the photographer.

Now, I took this to mean that unless they pay for the copyright, the client doesn't have full ownership.

But the company that wants me to cover a local sports tournament says with past photographers they've never had this issue come up. I.e. they've always been granted copyright ownership without being charged for it, and they've "worked with some big names in the industry." This puzzled me, since the one thing I've heard the most on podcasts/from pros/on discussion boards is to never give up the copyright.

Then, on PPOC (http://bit.ly/HysMwk) I find: "The Copyright Act provides that where a photograph is commissioned the copyright belongs to the person who orders the photograph....Effective July 1, 1998 the photographer's fee must be paid before the copyright will belong to the person commissioning the photograph." This seems to imply that once the photographer is paid to do the work, copyright is with the person who hired him/her?

Do you happen to know which is correct? Do I really don't have copyright over photos that I'm hired to create? The company says this is a deal-breaker for them, if they can't get copyright for fee. It just seems so counterintuitive to what I've heard for the last few years :(

[Iguanasan]

First off - I am not a lawyer. Just some comments from another photographer. Based on some quick Google searching, in Canada, the rule is that if the work has been commissioned then the copyright belongs to the client. This may have changed since the post from Michael Geist's site is from 2008 - Michael Geist - 61 Reforms to C-61, Day 60: Photography Provisions (http://www.michaelgeist.ca/content/view/3377/403/) but I doubt it.

One thing to take note about those podcasts, etc. is that they are all likely American in origin and their rules likely differ.

The big question, regardless of the legalities involved, is whether you are willing to give up your copyright to do the work. All the big photographers scream about maintaining copyright but I doubt very much if they held copyright on their commissioned works before they were "big photographers". Photographers hired by National Geographic or Sports Illustrated probably had to give up their copyright when working for those magazines. If they go on their own time and get the shots and then the company purchases the right to use their images, that's different. If, however, they had photographers on staff to go take the photographs, I doubt if they would have done it without owning the copyright.

I am currently taking photos of rental properties for a web-based company. I get money - they get to own the photos. That seems fair to me since I would never have taken those photos unless they had paid me to do it. It's not my creative work. I guess you kind of have to decide to either be a well-paid photographer potentially making a bunch of money but not owning the images or someone who owns all their images without necessarily making a dime.

Now that I know about this law, however, it certainly makes me curious about the status of wedding photos in Canada. Can I hunt down my photographer and get my photos for free since I commissioned the work and own the copyright?

[Iguanasan]

One extra note... you may want to see if there is a provision in the contract to allow you to use the images as part of your portfolio. Even if you can't maintain the copyright to sell them again you could at least use them to advertise your work.

[AntZ]

With out understanding any issues particular to Canada, I read that as "pay for the picture in full" not "pay for the copyright in full". So if you are working on assignment the person paying owns copyright. I am sure you can try negotiate otherwise. I would expect that you could use a great shot in your portfolio for example, but couldn't sell it to another magazine. Where as if you freelance you own the copyright and can sell the pics to whomever you like.

I think you are wise to want to understand how you can use your images before you shoot them rather than after. I am sure someone like AL can help with this one.

[Marko]

As far as I understand this (and I am not a lawyer), your interpretation is correct.

For now, if you are hired to do the job in Canada, the files belong to the people that hired you UNLESS a contract is written that states otherwise. This is why even wedding photographers have contacts that clearly state that all digital files or negs belong to the PHOTOGRAPHER. if no such contract was written, the files would belong to the bride and groom.

These laws are in the midst of possibly changing soon....but who knows when.

[shutter21]

Thank you for your replies!

Unfortunately, after talking to a local pro, you're both right that it means the person hiring me owns the copyright after they've paid me to do the work :(

Apparently to get around it, is to include a clause in the contract saying the photographer will retain full copyright, not the client. FORTUNATELY, this is exactly what I have been doing with past clients, so in those scenarios I DO own copyright. The reason I was panicking was because when I brought it up with the company, they made the implication I was doing something illegal and/or swindling people by providing them with false information in give up their rights.

Iguanasan, I know what you mean about the big pros having to give up copyright before they were big pros. I often wonder that! On the one hand, I don't like to think I'm giving an inch where I'm not supposed to be, but I also don't want to be giving up on opportunities that could do more for me in the long run.

Again, thank you both for your input!

Edit: Marko, the company actually used wedding photographers as an example. That it would be "silly" for the bride and groom to not be able to print their own photos without the photographer's permission. I have since informed them most photographers will either include the copyright fee into the quote they give you, or put a clause in the contract retaining copyright.

It's just a relief to know I wasn't totally out of the ballpark here, like they seemed to think!

[shutter21]

So there's been a new development for any who are interested.

I had originally quoted the company $500 for 4 hours (they wanted me to come out for a day to do some coverage for a sports tournament) and extra depending on licensing. After I found out they wanted the copyright, I told them I would have to raise the rate to cover the loss of copyright. Their reply was they wanted copyright + coverage at the original quote, and several "big names in the industry" pros they've worked with give them the same rate I do WITH copyright, and they are not going to pay me more just because I'm throwing "fancy terms" around.

This sounds really strange to me :/ I can't think any successful pro would really do coverage and give away copyright for $500. The best bet is probably just to walk away from this eh.

[Iguanasan]

I have to go back to what I said before... if you feel you are being ripped off then tell them to go find one of their "big names in the industry" and wash your hands of the deal. You'll never be happy with it. If you feel you can live with the $500 without owning copyright then do the job, take the money and put it towards a new lens or some hard drives to back up your images. I'm not going to tell you which choice is right for you... only you know that.

[Gremlich]

I agree that it sounds like they are trying to cow you into being taken. No skin off your nose to walk away and you have images you can sell. They'll bargain with you if you hold your ground - they need you more than you need them, eh!

I'd like to see a list of the "pros" they are referencing. I bet it's a bunch of hooey.