Photography is treated differently than other art forms in the Copyright Act. In cases where a photo is taken by someone who is not being commissioned to take the photo, the photographer is the copyright holder for the standard term of death plus 50 years. If the photographer is under contract to a corprate entity, the entity will hold copyright, but only for 50 years. This is the only exception to the “death plus 50” provision in Canadian Copyright law.

Also note that photos are defined to include photolithographs (ie, negatives). And historicaly, because of the costs associated with photography, the copyright in the photo (and negative) was held by the person who bought or commissioned the photographer. The owner of the photo has the copyright, unless the photographer has a contract that says otherwise. If you are being comissioned to take photographs for someone, check the terms of the contract carefully to see if you retain copyright or not.

If you are a photographer check out CAPIC’s copyright page. Scroll down to the FAQ.

Example 1

Q. I found a bunch of pictures in Value Village and I want to use them in an installation. What do I do?

A. While you may be able to use them for the installation, you run the risk of someone seeing the installation and claiming copyright over the photos. Even in cases where photos are found a presumed abandoned, copyright may be claimed.

Additionally, it should be noted that because ownership of commercial photographs rests with the person or entity commissioning the photographs, unless specifically specified otherwise in a contract, it can often be difficult to idintify who has the rights to photographs. The more identifiable a photo and its contents are, the more of a problem this can be.

Example 2

Q. I upload many of my photos to Flickr. One day, I noticed an advertisement using my photo. No one contacted me to ask for my permission to use the photo. What do I do?

Photography Example 2

A. The answer depends on the type of license that you used when you posted your photo on Flickr.

There are seven different types of licenses that you can use on Flickr. They are: 

1. Full copyright. This means all your rights are reserved, and other than for fair dealing uses, no one can use your photo without your permission.

The six others are Creative Commons Licenses. Read more about them on Flickr here.

2. Attribution License
3. Attribution-NoDerivs License
4. Attribution-NonCommercial-NoDerivs License
5. Attribtion-NonCommercial License
6. Attribution-NonCommercial-ShareAlike License
7. Attribution-ShareAlike License  

So what do all these mean? According to the Flickr Creative Commons page

Attribution means: You let others copy, distribute, display, and perform your copyrighted work - and derivative works based upon it - but only if they give you credit. 

Noncommercial means: You let others copy, distribute, display, and perform your work - and derivative works based upon it - but for noncommercial purposes only. 

No Derivative Works means: You let others copy, distribute, display, and perform only verbatim copies of your work, not derivative works based upon it. 

Share Alike
means: You allow others to distribute derivative works only under a license identical to the license that governs your work.

So how does this apply to you? Depending on the type of license you assigned to the picture you’re now staring at in an ad, this use of your photo, without your explicit permission, might be perfectly legal. Creative Commons licenses are designed to simplify the system of copyright, and in this case it looks like they may have done just that. If you tagged your photo with only an Attribution License, so long as somewhere on that ad there is some mark giving credit to you, the photographer, the ad is probably not in violation of copyright. And the person or corporation who made the ad was able to use your photo without going to the trouble of contacting you. Maybe this is just fine, and it’s what you intended. 

But what if the photo in question has someone else in it – say a good friend of yours, and she is not at all pleased to find her image plastered all over bus stops. If the people who made the ad didn’t contact your friend and get permission to use her image for commercial purposes they made a mistake, and your friend can pursue them legally.