HOW TO NAVIGATE COPYRIGHT LAWS IN CANADA
Let’s start at the very beginning:
You book a fitness photoshoot with a professional photographer. You diet, and train hard for 8 weeks. You see the pictures (which turned out phenomenally), and obsess over them. You use them on your social media pages, and blow up on Instagram, becoming an Instafame sensation overnight. A famous supplement company takes notice, sponsors you, and then starts using those kick ass photos on their social media to promote you. Then, you get sued for 10-grand.
Wait … What?
Technically, my friends, you don’t own your images after the photographer takes the shots. Once upon a time “… the Canadian Copyright Act discriminated against freelance photographers because it did not automatically recognize their ownership over the work they created in the course of their employment.”1 That means that prior to 2012, people could do whatever they wanted with their images, and the photographers wouldn’t see a penny of the money (or credit). This was clearly unfair to the majority of photographers who were now no longer making royalties, or commission off any of their photos that were being used after the shoot.
But things have changed, and Canadian photographers own the image under the new copyright laws – they technically own them before you do. They don’t have to sign an agreement stating this fact or anything; it’s just the LAW. The Act guarantees, by default, that they own the images. This applies whether you pay/commission the photographer, or whether they do it for non-commercial uses.
Above: Obviously not a real magazine, but if I was to allow a real magazine to do this, they would need permission from the photographer, Lori Fabrizio in this case.
I know you’re probably thinking, “Then what am I supposed to do with my pics? Why did I pay all that money?”. No one is stopping you from making a name for yourself on Instagram. Your photographer probably wants you to post his/her photos because if gives them more exposure. However, they just want you to do it lawfully, and with express permission in writing. Most athletes don’t understand that they cannot use their images for commercial usage, and ultimately, even if they are submitting it for use, the onus is still on the publisher to seek permission for the rights to use them.
So you can post your pics, print as many copies as you want, use them for Christmas/Hannukah/Birthday cards, and distribute them for fun, but any commercial (read: monetary) use has to be approved by the photographer first. Nobody is trying to screw anybody over here; just remember this is the photographer’s livelihood. If you’re going to make bank out of photos they took, they should see some of it. Companies and magazines normally have to pay out of their own pockets to set up commercial photoshoots or purchase the photos to use for commercial use, this way the photographers are protected from losing out on the fees that they should have been paid to shoot the work required.
So what could happen if you do use the photographs without lawful consent?
In summary, before you start pitching yourself to supplement and clothing companies, just remember to run it by your photographer first. Let them know your intentions, and have them sign off on it. Chances are if you’re working with a professional who has a good heart, they’ll be more than happy to help you build your credibility and work something out for you! But, if you don’t ask them first, and a company uses your images for a commercial purpose, their actions constitute copyright infringement in violation of Canadian’s copyright laws. The consequences of copyright infringement can include statutory damages greater than $1000 per work, and damages greater than $10,000 per work for willful infringement.1
The photographer may serve you and the company using the photo with a letter demanding to “Cease and Desist” the use of the photo(s). This could be difficult if the picture has already been posted and seen on social media, or published and printed. Once a picture is out on the internet, it never really disappears. This can cause some serious litigation issues for you at this point, because the photo is in circulation without the photographer’s permission or compensation, so the courts could penalize you hard for that.
Scott Welch, Publisher of Muscle Insider Magazine, once used the following analogy to me that puts it in a good perspective: If you went and had your photo painted by an artist, and the artist gave it to you, you could keep it and hang it up in your residence. But what if you auctioned off that painting? That painting is technically the artist’s work, and they would have to be compensated for any proceeds from it. A photograph is no different, a photographer is also considered an artist.
Pictured Above: The Mona Lisa Painting, painted by the great Leonardo Da Vinci, is a great example of how a portrait of a person becomes the “art” of the photographer
On the flipside, it is always a good idea to maintain communication with the photographer who took your photos. What if you allow a magazine to use a photo that the photographer had already submitted to another magazine, and was destined to be published. This would look very unprofessional for the model and photographer, and would most likely hinder any future opportunities to be published.