[BCMA] An archives question - Canadian copyright disagreement

Thu Feb 11 19:11:08 PST 2010

In asking my contacts in the photography business, they confirm that "only the photographer can tell you if he had a contract with the contractees".   In order for him to have maintained the copyright, he would have had an original contract with the purchaser(s), stating that the copyright remains with him or his company. 

From my days working in the pro-lab business, the stamp on the back of the photo served 2 purposes: 1/ In the case of a proof, it kept the image from being reproduced prior to final payment being made by the contractee. 2/ It is there to protect the photograph from being reproduced in volume. Depending on the contract, the contractee, may have only purchased a single photographic print, not the right to own the negative or make multiple copies. Many portrait photographers do not charge a sitting fee, their fee is directly associated with the purchase of a print or album of prints.

Greg Blue, the Department Head at Langara College, Continuing Ed, Photography Program would be able to answer this question. He was VERY involved with CAPIC and teaches a course that covers this topic in detail.

I have cc. him this text. Hi, Greg, I hope you can answer this for us? Looking forward to hearing the final answer.
K.

Karen Somerville
Fidelis Art Prints Inc.
Vancouver, BC
www.fidelisprintmaking.com

On 2010-02-10, at 3:58 PM, Moderated BCMA subscriber listserv. wrote:

> I was told in copyright training a few years ago that the opposite of what Jim is saying regarding photos. (This was almost certainly at a CMA or BCMA Conference using a very knowledgeable speaker on copyright in Canada)  See my earlier posting.
>  
> Many people fall into the trap of assuming that US and Canadian copyright laws are the same. Many references in museums/archives and on the Internet will be about US copyright law and in typical US fashion they do not say that they are talking about US law, they assume that everyone knows.
>  
> As I recall, we were told that in Canada it is automatic that whoever paid the photographer to take the photo owns the copyright, NOT the photographer. The instructor told us that most photographers do not know this little oddity of Canadian copyright law, so they stamp their photos as being under their copyright, but they have no legal right to do so. Then we the customers are told by the photographers (who believe it themselves) that THEY own the copyright and as we are not copyright experts, we the people go along with it.
>  
> Remember too that Canadian copyright is different from US copyright.
>  
> Barbara responded with a valuable link. Here is a quote from that web reference Canadian Intellectual Property Office:
> Ownership
> Generally, if you are the creator of the work, you own the copyright. However, if you create a work in the course of employment, the copyright belongs to your employer unless there is an agreement to the contrary. Similarly, if a person commissions a photograph, portrait, engraving, or print, the person ordering the work for valuable consideration is the first owner of copyright unless there is an agreement to the contrary. The consideration must actually be paid for the copyright to belong to the person commissioning the photograph, portrait, engraving, or print. Also, you may legally transfer your rights to someone else, in which case, that person owns the copyright.
> http://www.cipo.ic.gc.ca/eic/site/cipointernet-internetopic.nsf/eng/wr00506.html#no10
>  
> An interesting point too is that if you hire a photographer for your wedding for example, then sign a contract with them, and IF that contracts states that copyright then belongs to the photographer … but then without having the contract in hand, how is a museum or archives to know if it was signed over? Catch-22. (another old movie reference)
>  
> No disrespect to my colleague Jim … but obviously we need a legal eagle Canadian copyright expert to give us chapter and verse, especially on such a complex topic. I shall look for my notes from the copyright training, but as I have moved several times since then, they are buried very deeply. I am thankful that this is not an episode of “Paperchase” with John Houseman as Professor Kingsfield. For those who remember the old TV series will know what I am talking about. For those who do not remember …well, have a look on YouTubehttp://www.youtube.com/watch?v=cZJEhlIefxA  Pretend that you are the new student name Hart, then sit back, watch and relax!  
> ;-)
>  
> “Facts, Mr. Hart, facts. The law deals with facts, not opinions.“ [As I remember him saying it]
> Then of course there are Kingsfield’s opening remarks “The study of law is something new and unfamiliar to most of you, unlike any other schooling you have ever known before. You teach yourselves the law, but I train your minds. You come in here with a skull full of mush and, if you survive, you’ll leave thinking like a lawyer.”
> 
> Maybe that is why many of us in the museum field went in for the Arts at university. Maybe it was because we did not want to be rich, if it meant thinking like lawyers.
> 
> ;-)
> 
> COLIN
>  
> Colin MacGregor Stevens,
> Manager,
> New Westminster Museum and Archives,
> 302 Royal Avenue,
> New Westminster, BC,
> V3L 1H7
>  
> Phone Office:    604-527-4639
> Work Cellular : 604-830-6965
> Fax:                  604-527-4641
> E-mail: cstevens at newwestcity.ca
> Web Site: www.newwestminster.ca
> -----Original Message-----
> From: Moderated BCMA subscriber listserv. [mailto:bcma at lists.vvv.com] 
> Sent: Tuesday, February 09, 2010 4:15 PM
> To: bcma at lists.vvv.com
> Subject: Re: [BCMA] an archives question
>  
> Unless the purchaser specifically purchased copyright as well, the photographer has the rights.  That is why some photographers actually stamp the back of the photograph with their copyright stamp.  If the purchaser wanted another print made, they had to go back to the photographer.
> In your case, since the donor assigned copyright to the archives, you've got it not the purchaser.
> In another case where the photographer was employed to take pictures such as a newspaper, you have to know the employment agreement as to who owns the copyright, the photographer or the newspaper.
> Jim Millar
> Manager/Curator
> Port Moody Station Museum
> ----- Original Message -----
> From: Moderated BCMA subscriber listserv.
> To: bcma at lists.vvv.com
> Sent: Tuesday, February 09, 2010 1:35 PM
> Subject: [BCMA] an archives question
>  
> Hello all:
> A local town photographer donated over 50 years of photographs and negatives to our archives. Copyright of the collection was assigned to the archives at the time of donation. But a question has arisen. Some of the photographs are portraits of local residents. These are people who paid to have their photographs taken. In these cases who owns the rights to the photographs? Is it the archives, photographer or purchaser?
>  
> Thanks for your thoughts in advance.
>  
> Ron Denman
> Director
> Chilliwack Museum and Archives
> 45820 Spadina Avenue
> Chilliwack, BC V2P 1T3
> Phone: 604-795-5210; Fax: 604-795-5291
> www.chilliwack.museum.bc.ca
>  
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