BLG’s Advertising, Marketing and Sponsorship Group recently held a Continuing Legal Education session titled “Marketing Law News Flashes: Recent Updates and Reminders”. During the CLE, one of our intellectual property partners, Hafeez Rupani, mentioned the recent Agence France Presse/Daniel Morel case. The case all began when a photojournalist took photos of the aftermath of the 2010 earthquake in Haiti and posted them on Twitter. The case illustrates the distinction between retweeting a Twitter posting, which would be permissible, versus using a tweeted photo on a website when there is no licence permitting such use. It also reinforces that just because you found something on the Internet, it doesn’t mean that you can use it freely. Hafeez noted that “unless you are the owner of copyright, you likely need authorization or a licence to use a copyright-protected work.”
During the CLE Hafeez also reminded us that, with the recent amendments to Canada’s Copyright Act, the default rule is now that the photographer is the author and owner of copyright in the photo s/he has taken; however, absent an agreement to the contrary, an employer would be the owner of copyright in the photo if it were taken by a photographer who they employed and who took that photograph during the course of his/her employment. Previously, Canada’s Copyright Act provided that a person who commissioned a photograph was the owner of copyright in the photo.
When talking about copyright in Canada, one cannot forget about moral rights. Moral rights give the author of a work (e.g. photograph), the right to the integrity in the work and, where reasonable in the circumstances, to be acknowledged by name (or pseudonym) as the author of the work. Moral rights cannot be assigned, but may be waived by an author, including in favour of another party. Accordingly, if a photographer assigns copyright in a photo, s/he may still retain moral rights unless they are specifically waived.
Before companies and organizations start using photos off the Internet, they need to determine whether they have a licence or authorization to use the photos. If there is no licence or authorization granted for the desired purpose, a licence or authorization will likely need to be obtained. It would also be prudent to obtain a waiver of moral rights. Hafeez recommended that agreements get executed to address copyright ownership and waiver of moral rights from all photographers, whether they are employees or independent contractors.