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Thread started 06 Nov 2011 (Sunday) 13:15
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Model Release Enough in Canada?

 
squaresnappr
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Nov 06, 2011 13:15 |  #1

Hello, fellow members. I was asked to do a feature in a magazine describing my photography. They had asked for pictures to submit in certain sizes and was wondering if a model release is enough or should I ask the models' permission? I read the sticky for model releases but then I talked to another photographer in the local camera shop and he said this is Canada and the laws are different. He said even though I have a model release, that the model has rights here too. This does not make sense but he says in Canada they have rights to a photo I took as well. These pics were done TF.

The cover for the Magazine is no problem because the model is fine with it but there is a pic of a model that I want to submit for the spread. I have a release signed by her but earlier she had told me to remove all credits of her name linked to the photos because she is entering the field of law after she graduates. She said that she doesn't want people to see those pics because of the nature (they are implied). I am in a good relationship with this model, so should I move forward and choose another pic or am I fine submitting the pic?


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Shadow ­ on ­ the ­ Door
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Nov 06, 2011 15:34 |  #2
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As long as the model release states you reserve rights to use/sell the photos for commercial purposes then you're good to go.


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squaresnappr
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Nov 06, 2011 16:24 |  #3

Shadow on the Door wrote in post #13362018 (external link)
As long as the model release states you reserve rights to use/sell the photos for commercial purposes then you're good to go.

Thanks for your reply. How about it says,"the right and permission to copyright and/or use, reuse and/or publish, and republish photographic pictures or portraits of me."


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Shadow ­ on ­ the ­ Door
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Nov 06, 2011 17:50 |  #4
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squaresnappr wrote in post #13362210 (external link)
Thanks for your reply. How about it says,"the right and permission to copyright and/or use, reuse and/or publish, and republish photographic pictures or portraits of me."

That should cover it.


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Dan ­ Marchant
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Nov 06, 2011 22:26 |  #5

squaresnappr wrote in post #13361450 (external link)
.....he said this is Canada and the laws are different. He said even though I have a model release, that the model has rights here too. This does not make sense but he says in Canada they have rights to a photo I took as well. These pics were done TF.

He is referring to the fact that Canadian copyright law is different from that of the USA and most other territories. In Canada the client owns the copyright on an image. That means that if someone hires you to take their portrait or boudoir photos they own the copyright and can sell the images or use them however they want; while you would need a license from them to use the images. If you hire (pay) a model to pose for images then you are the client and own the copyright. You can sell the images, but a model release would be needed if someone wanted to use the images for commercial purposes.

The issue in the OP is that this was a TF shoot. Both parties donated/spent their time for the shoot so it could be argued that both of you own the copyright*. I don't know what the law is in Canada in relation to TF. I think you would need to check with an IP lawyer before proceeding.

*Joint ownership of copyright does not mean that either party can do what they want with the images; it means that neither party can use them unless they have permission from the other party.


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Shadow ­ on ­ the ­ Door
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Nov 06, 2011 22:58 |  #6
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that's not true at all, here in Canada the images you take are your intellectual property and copyright until you sign it away, at least that's what my family member lawyer told me when I was figuring out the business side of things.


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ssim
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Nov 07, 2011 12:48 as a reply to  @ Shadow on the Door's post |  #7

Given that this issue surrounds the publishing of the photos in a magazine I would highly suggest that you get it right and not rely on the advice of a free forum board. I find it surprising that the magazine would not know what the current laws are regarding this. They are usually very in tune with what they need.

The other issue that I see here is that the model has requested that you not use certain images. It would appear that she has taken a new direction in life and is asking for the OP's assistance in not hurting that. Irrespective of the presence of the model release I would abide by her wishes. It is a question of doing the right thing morally. There are some big issues at play here and you had better make sure that you are on the right side of the law. Does the fact that she has made this request negate the model release, I don't know but worth looking into. You cannot assume that the laws in Canada will be the same as they are in the US though it would be nice if they would align them given that this is one of the largest trading partnerships in the world.

Canada has been reworking their copyright laws in the last few years but this is mostly as it relates to music. The official website can be found at Canadian Intellectual Property Office (external link). There is also no shortage of blogs and websites that try to put their own interpretation of these laws. If I was in the OP's shoes and given that there has already been a request to not publish I would checking with my lawyer to get the real answer. When I get into gray areas like this I always put my request to my lawyer in writing so that I get the answer back in writing. Yes he charges me for it but the peace of mind is worth the expense. If you want to play in the league of publishing and models you have to make sure that you are doing the right thing both morally and legally.


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Dan ­ Marchant
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Nov 07, 2011 20:37 |  #8

Shadow on the Door wrote in post #13363868 (external link)
that's not true at all, here in Canada the images you take are your intellectual property and copyright until you sign it away, at least that's what my family member lawyer told me when I was figuring out the business side of things.

I'm afraid you need to fire your family member (at least as a lawyer - they can probably stay a member of the family) and consult a qualified intellectual property lawyer, with experience in photography.

Unlike many other authors/artists in Canada, photographers do not automatically own the copyright on images that they were paid to produce. Under Section 13(2) of the Copyright Act, any person or corporation that hires a photographer (commissions a work) will automatically own the copyright in that work, once the work has been paid for, unless there is an agreement to the contrary. - The photographer only owns the copyright if the client signs an agreement assigning it to them.

This is the opposite of almost all other territories where the photographer owns the copyright automatically.

Link to the CAPIC website http://www.capic.org/c​opyright.html (external link)*

Link to the relevant section of Canadian Copyright Act http://laws-lois.justice.gc.ca/eng​/acts/C-42/page-7.html#h-7 (external link)

* Contrary to what capic say photographers are not the only creatives treated "with such disdain". Section 13(2) of the act (linked above) applies to "an engraving, photograph or portrait". Obviously there aren't a vast number of engravers out there these days but portrait painters would also be included and thus don't own the copyright either.


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Shadow ­ on ­ the ­ Door
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Nov 07, 2011 20:45 |  #9
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well she isn't an IP lawyer specifically, maybe she meant non paid.


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Dan ­ Marchant
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Nov 08, 2011 08:22 |  #10

Shadow on the Door wrote in post #13368324 (external link)
well she isn't an IP lawyer specifically, maybe she meant non paid.

And that makes bad advise OK? If she meant unpaid she should have said that because, if she isn't specific and you have based business decisions on what she said, you could be on the receiving end of a copyright infringement lawsuit.


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Shadow ­ on ­ the ­ Door
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Nov 08, 2011 14:09 |  #11
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I never asked her about paid, this is hardly relevant to me, but I'm happy it's worrying you so much.


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Dan ­ Marchant
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Nov 08, 2011 22:31 |  #12

Shadow on the Door wrote in post #13371612 (external link)
I never asked her about paid, this is hardly relevant to me,

However it is relevant to the OP as this thread is clearly about business. My only concern is that the OP doesn't make a potentially serious error based on the misinformation you posted.


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Shadow ­ on ­ the ­ Door
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Nov 09, 2011 09:31 |  #13
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either way what you're saying is irrelevant, he has a model release.


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Dan ­ Marchant
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Nov 09, 2011 20:22 |  #14

Shadow on the Door wrote in post #13375447 (external link)
either way what you're saying is irrelevant, he has a model release.

No, it isn't irrelevant at all. A model release is utterly worthless if the OP doesn't own the copyright on the image. A model release form has nothing to do with copyright - it is merely the model granting permission for their likeness to be used commercially. To use the image you still need to either buy the copyright from the copyright holder or be granted a valid license by them. If the OP doesn't own the copyright then they can't sell the image or even grant a license for the image to be used.

Example:

If you pay a model to pose for you, you then own the copyright on the images. You can sell prints/postcards or publish a photo book, even without a release. However you (or anyone else) may not use the image for "commercial" purposes - which in this situation means using it to advertise a company, service or product. To use the image for commercial use the person using it requires a signed release from the model that gives permission for their likeness to be used for commercial purposes.

You now post your image in an online portfolio and a company sees it. Someone there happens to be friends with the model so, instead of coming to you, they approach her and ask if they can use "that great picture of her". She knows nothing about copyright and just agrees. She even agrees to sign a model release form because the company's legal dept say that a release is needed. Despite having a valid model release, the company still can't use the image, because they don't have any form of license from the copyright holder (you).

Just to further clarify how un-irrelevant this is, many publications will want a photographer to sign a contract when they buy/use an image. That contract will almost always include a clause which states that the photographer owns the copyright or has a valid license to sell the image. they don't in fact own the copyright then signing such an agreement would be adding the criminal offence of fraud/fraudulent misrepresentation to the civil offence of copyright infringement.

Conclusion
The OP has stated that the pictures was taken as part of a TF shoot. I do not know how Canadian law will interpret TF and the resulting copyright ownership. It may be that as neither party "paid" there is no client and the photographer owns the image. Equally possible, it may be that both parties are deemed to have "paid" (in the form of time and effort) and that both parties own the copyright. In the latter case the OP wouldn't be able to sell (or grant usage of) the image without the permission (separate from model release) of the model.

Given the expense and serious nature of copyright infringement cases (not to mention proceedings for possible fraud), it is in the OPs best interest to consult an IP lawyer to clarify the issue of copyright ownership in regard to TF shoots.


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Model Release Enough in Canada?
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