by Gil Zvulony
A photograph is two things in one: it is on the one hand a representation of something or someone, and then again it is its own work of art, separate from what or who it represents. This raises, and has for a long time raised, some interesting issues with regard to the law. Who owns the rights in a photograph, the person who commissioned the picture or the person who took the picture? What rights does the subject of the photograph possess? (For a discussion of sharing photos on social media read: Facebook – Who owns My Photos)
There are many different rights in a photo. A person pictured in a photograph may possess certain rights independently of the photographer’s right to his or her creation. Canadian court cases have dealt with the question of whether photographing someone can be a violation of that person’s privacy, of whether using someone in a photograph is an infringement of that person’s right to trade-mark his or her image, and whether a photographer can re-use a photograph without getting the permission of the people in it.
Canadian law on rights in a photograph is always in flux. As the technology and its uses change so do the legal questions that arise.
Canada’s Copyright Act was changed in 2012. One key change was that photographs were now treated as any other “artistic work” such as paintings or drawings. Copyright law gives the owners of artistic works certain exclusive rights to exploit their works, such as reproducing the photograph or selling the photograph. In the case of photography this means that the copyright owner of a photograph can, in most cases, prevent others from copying that photograph. With the exception of photographs taken during the course of employment, the photographer will always be the owner of the copyright in a photograph.
S. 14 of the Copyright Act also grants “moral rights” to an author, which prevent someone from making alterations to the author’s work if those alterations will affect “the integrity of the work,” and require the author to be given proper credit for the work. The leading case on moral rights was Snow v The Eaton Centre Limited, et. al (1988) 70 CPR (2d) 105, where the Ontario High Court of Justice ruled that an artist who had sold his sculptures to the Eaton Centre had the right to keep them from making unauthorized changes to the work: even though they owned the physical objects, Snow still had rights over the artistic integrity of his creations. This case can stand for the proposition that even if a photographer assigned copyright to his photographs (but did not waive his moral rights), the photograph can still maintain some artistic control over modifications/distortions of the original photograph.
The application of this principle to photographs was made in the Ontario Superior Court of Justice case of Ritchie v. Sawmill Creek Golf & Country Club. In this case, Justice Ducharme dealt with the case of a photographer (the plaintiff, Mr. Ritchie) who had presented the defendant with a book of photographs he had taken. One of the many issues in the case was Ritchie’s contention that his moral rights had been infringed when the defendants enlarged some of his photographs to display on posters: the “horrifying” quality of the enlargements, he contended, ruined the integrity of his work.
Ducharme J. concluded that Ritchie had not proven either head of moral rights infringement to his satisfaction. In the case of the enlargements, Ritchie had not demonstrated that the enlargements would be considered of poor quality by the standard of the photography business; he had not tried, for example, to get experienced professional photographers to testify that the enlargements were badly done. To demonstrate infringement of moral rights, a photographer would have to show not only that changes were made to the photograph, but that the changes were unreasonable and harmed the photo artistically. This must be demonstrated not on the basis of the photographer’s personal opinion, but on evidence of the standards of the profession.
Rights of the Subject – Privacy and Publicity Rights
In some cases, the subject of the photograph may have certain rights as well as those of the copyright owner. The person who was photographed may have the right to suppress the publication of the photograph, or even to obtain damages, if it infringes on his or her rights. There are two kinds of rights that can be involved here: the right of privacy, and the right of publicity.
Privacy rights prevent other people from seeing a person’s image unless he or she wants it to be seen. Publicity rights, on the other hand, are about a person’s right to exploit his or her image, to create a public persona, to make money off his or her appearance. If privacy rights give someone the right not to have their image presented to the public, publicity rights give them the right not to have it presented to the public before they get a chance to do it.
The Right to Privacy
In Aubry v. Editions Vice-Versa Inc. (1998), 50 C.R.R. (2d) 225,  1 S.C.R. 591, the plaintiff brought an action against a photographer and publisher for taking a picture of her as she was sitting on the steps of a building, and publishing it in a magazine without her consent. She argued that this was a violation of her right to privacy under Quebec’s Charter.
The Supreme Court, in the jointly-written decision of several justices, ruled that the unauthorized taking of a photograph is, in fact, a violation of a person’s right to privacy if that person is the subject of the photograph, rather than an incidental character in it:
Since the right to one’s image is included in the right to respect for one’s private life, it is axiomatic that every person possesses a protected right to his or her image. This right arises when the subject is recognizable. There is, thus, an infringement of the person’s right to his or her image, and therefore fault, as soon as the image is published without consent and enables the person to be identified.
However, the court ruled that the plaintiff was only eligible to claim nominal damages, $2,000, for the violation of her privacy, as there had been no “moral prejudice” caused by the publication of the photo. The court ruled that there must be a fairly high degree of “discomfort and upset” caused to the subject of a photograph in order for him or her to prove that the publication of the photograph was actually harmful.
The court’s ruling was, as previously mentioned, based on specific provisions in Quebec’s legislation, and thus might not be completely applicable to all other provinces. But the tone of the Supreme Court’s discussion of the issue made it clear that the justices saw the issue as being broader than just the specific legislation; the judgment speaks in general terms of the importance of not “extending the photographer’s freedom at the expense of all others,” establishing a general principle that the freedom of a photographer to take pictures must be balanced with, and not permitted to override, the right of an individual to protect his or her privacy.
In 2012, the Ontario Court of Appeal adopted a new tort of invasion of privacy (formally called “Intrusion Upon Seclusion”) in the case of Jones v. Tsige. While the Jones case did not deal with photographs, the court did give guidance as to when someone’s privacy could be violated. The court stated that the following factors must be present:
- The defendant’s conduct must be intentional or reckless
- The Defendant invades the plaintiff’s private affairs “without lawful justification”
- A “reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish”
The court also added a “reasonableness” limitation to claims of Intrusion upon Seclusion. The court stated that:
[c]laims from individuals who are sensitive or unusually concerned about their privacy are excluded: it is only intrusions into matters such as one’s financial or health records, sexual practices and orientation, employment, diary or private correspondence that, viewed objectively on the reasonable person standard, can be described as highly offensive.
Thus, it is safe to say that photographs taken in intimate or private situations (such as “revenge porn” or so called “up-skirt photos) violate the privacy rights of the persons in them.
A case that dealt with publicity rights in a photograph was Athans v. Canadian Adventure Camps Ltd. (1977), 17 O.R. (2d) 425 at p. 434, 80 D.L.R. (3d) 583. The plaintiff was an athlete, and the defendant had put out a brochure which had used an image based on (but not directly copied from) a photograph of the plaintiff. Even though the brochure did not directly represent the plaintiff, the court ruled that the plaintiff’s rights had been violated because the defendants had appropriated his “trade-mark pose,” and thus an element of his personality that he relied upon for publicity purposes.
Though the pose was referred to as a trade-mark, and theoretically the above situation could have been framed as a trade-mark violation (passing off the defendant’s camp as having been endorsed by the plaintiff), the decision was based less upon trade-mark rights than proprietary rights, namely the exclusive right to control the marketing of one’s image. In his decision, Henry J stated that “it is clear that Mr. Athans has a proprietary right in the exclusive marketing for gain of his personality, image and name, and that the law entitles him to protect that right, if it is invaded.” In other words, a person has a proprietary right in the ability to market and exploit his or her image.
In Gould Estate v. Stoddart Publishing Co. 1998 CanLII 5513 (ON C.A.) Finlayson J.A. dealt with the question of whether the subject of a photograph can sue for the tort of appropriation of personality. Finlayson J.A. declined to rule on the issue of whether appropriating someone’s image could be a separate tort, which seemed to imply that even though Athans had suggested the possibility of a tort of appropriation of personality, later cases would restrict this tort to the narrow scope of misuse of someone’s image for marketing purposes. In this particular case (where Glenn Gould’s estate was trying to prevent the re-use by a photographer of some photos that he had taken of Gould years before), he pointed out that the case could be settled decisively in the defendant’s favour simply by applying the principle that unless the subject’s image has been borrowed for commercial purposes, a subject’s rights in a photograph end with the consent to the taking of the photograph:
The owner of the negatives is the author and owner of the copyright in the photographs and the author of the written material in the book is the owner of the copyright in that written material. The subject of the photographs and the written materials has no proprietary interest whatsoever unless he or she had obtained an interest by express contract or implied agreement with the author. Looked at in this light, the concept of appropriation of personality has no application.
The subject of a photograph can also claim that by distributing a photo of him or her, a photographer is committing the tort of “passing off,” of making the public believe incorrectly that the subject is associated with certain goods or services. If a photographer distributes photos of a celebrity, the public may mistakenly believe that the celebrity is associated with, or approves of, the photographer’s work.
This was the argument advanced in Salé v. Barr,  A.J. No. 595, an Alberta case where figure skaters sued to stop a photographer from distributing photos he had taken of them. The court ruled that the plaintiffs had a right to control the use of their trade-mark image, and that included the right not to have their image associated in the public’s mind with that photographer’s work.
One other question about the rights of a person in a photograph is what happens when a person is not, in fact, the subject of a photograph, but is merely a sort of bystander, incidental to the real subject-matter. The Supreme Court in Aubry suggested that if someone is not the subject of a photo, he or she does not need to approve his or her presence in it; no permission need be obtained from a person who is “an anonymous element of the scenery, even if it is technically possible to identify individuals in the photograph.” The court did not clarify what would constitute an “element of the scenery,” nor did it deal with the contradiction inherent in the idea that someone could be simultaneously be anonymous and identifiable.
Rights of Models
In the United States, there have been cases dealing with the rights of models who pose for photographs and in whether they need to give their consent to the further use of such photographs. One such case involved a Canadian corporation operating online, Perfect 10, Inc. v. Talisman Communications Inc., where Paez J. ruled that models, who assigned their rights of publicity to one company, had those rights violated when the photos were used by someone else for advertising purposes. There is no federal law on the issue, but state-level cases such as this one have established that while a model’s image is not in itself copyrightable, a model retains rights of privacy and publicity in his or her image even after the photograph is taken. The primer on privacy and publicity by the Library of Congress sums up the prevailing rule as follows:
If no formal relationship (e.g., a release form signed by the subject) exists that permits the photographer to licence the use of the photograph for all uses or otherwise waives the subject’s, sitter’s or model’s rights, then the advertiser must seek permission from the subject of the photograph because the subject has retained both privacy and publicity rights in the use of their likeness.
This issue has not been dealt with much in Canada. One of the few cases that dealt with the issue was the Quebec Court of Appeal’s decision in Malo v. Laoun, 2003 A.C.W.S.J. 8462. The case involved a Quebec actress who posed for photographs to advertise a manufacturer of eyeglasses. The defendant, who operated an optician’s store where the advertisements were displayed, gave permission for them to be displayed in a commercial directory, without obtaining the actress’s consent. The Court of Appeal ruled that the plaintiff was entitled to compensation for economic and moral damages, and that her consent for one type of advertising did not create a right to use the photograph for any type of advertising.
In his decision, however, Dussault JJA adopted the principle that the plaintiff should not be awarded damages for “usurpation of artistic identity” as a separate tort. While all this is based on the Quebec Civil Code rather than common law, it does suggest how Canadian courts might approach the issue in future: a person’s rights in his or her image do not end with giving consent to one type of exploitation, and consent must be obtained for any further type of exploitation, but the damage created must all fall under pre-existing tort headings.
Based on this, and on the Aubry decision, suggesting as it does that people must consent to the use of their image, it seems possible that Canadian law might eventually tend in the same direction as U.S. law, with the result that a photographer would be well advised to get models to sign release forms. And since Canadian cases such as Athans have recognized a right to commercial exploitation of one’s own image, this principle could be used to argue that if the photographer intends to make more money from the model’s image, the model must share in this too. On the other hand, the fact that the legislation is moving away from giving rights to anyone other than the photographer might suggest that models will eventually have fewer, not more, rights, so this issue could arguably develop in any number of directions.
Canadian law has moved to granting more and more rights to the person who takes the photograph, as opposed to the person who commissions it or the person who is in it. The 2012 modifications to the Copyright Act grant broad rights to the creator of a photograph, and only very narrow rights to the person who pays for its creation. As for the subject of the photograph, Canadian courts will not go (or at least have not gone) very far in granting rights to someone who is pictured in a photograph. There might be a basic requirement to get the subject’s consent for the taking and initial use of the photograph, and there might be a requirement to get someone’s consent for the commercial exploitation of their image. But if these conditions are satisfied, then the photographer’s copyright will be treated as absolute. Just as the writer of a book has certain rights that usually supersede the rights of the publisher or the subject of the book, the photographer has rights that usually – not always, but usually – supersede the rights of others.