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Thread started 20 Feb 2008 (Wednesday) 16:38
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Canadian work for hire definitions and copyright ownership

 
DocFrankenstein
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Feb 20, 2008 16:38 |  #1

1) What is considered to be work for hire in canada?
2) If I am hired for a wedding in canada, who owns the copyright?

I'm asking because one guy said:

in Canada, all situations where one person hires and pays another are construed as a work for hire. So, under the context of the current discussion, in Canada, if you hire and pay a wedding photographer, the moment you tender payment, you, the client, own the copyright. In the United States that isn't true.

Is this true?


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BlackJagger
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Feb 20, 2008 17:30 |  #2

Well I got some bad news for you, in theory yes. There was a proposed change to this in a dead bill called c-60 I believe. Here is a link to all sorts of Canadian legal issues.

http://ambientlight.ca​/laws.shtml (external link)

Just like anything put it in a contract and there is some wiggle room. If you state that the images are your property and the client agrees to this then you own them. But as the legal system stands now if you are hired then the copyright is owned by the party that hired you.

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Living ­ Daylight
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Oct 22, 2009 07:52 |  #3

I am resurrecting this thread because I had an issue like this recently.

Would this concept apply in the case of bartering? I performed photography work and will receive services from the hiring party in the future. Who owns the photos in this situation?

It seems from this http://laws.justice.gc​.ca …n#anchorbo-ga:l_I-gb:s_13 (external link) that there has to be 'valuable consideration' involved and that the person who hired me does indeed own the images.

I'm a little pissed about this, it doesn't seem fair to the photographer at all. Now I can't upload any pics for critique :(.


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Living ­ Daylight
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Oct 22, 2009 10:05 |  #4

In part? I'm not sure what that means, exactly.


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Living ­ Daylight
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Oct 22, 2009 19:14 |  #5

"(3) Where the author of a work was in the employment of some other person under a contract of service or apprenticeship and the work was made in the course of his employment by that person, the person by whom the author was employed shall, in the absence of any agreement to the contrary, be the first owner of the copyright, but where the work is an article or other contribution to a newspaper, magazine or similar periodical, there shall, in the absence of any agreement to the contrary, be deemed to be reserved to the author a right to restrain the publication of the work, otherwise than as part of a newspaper, magazine or similar periodical."

That is the passage that seems relevant to the discussion. Which part speaks of partial rights? Or am I missing something entirely?


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Brikwall
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Oct 24, 2009 20:24 |  #6

My understanding (and I'm no legal expert) has always been that the clause in question refers to situations where an employment contract has been signed or assumed. Getting hired as a staff photographer by a local newspaper is an example of an employment contract. Getting hired by your next-door neighbour to shoot their daughter's wedding or their son's hockey team is not an example of an employment contract.


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sorpa
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Oct 25, 2009 18:12 |  #7

Brikwall wrote in post #8888051 (external link)
Getting hired by your next-door neighbour to shoot their daughter's wedding or their son's hockey team is not an example of an employment contract.

It is.

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.




  
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Brikwall
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Oct 25, 2009 23:12 |  #8

lui-même wrote in post #8892771 (external link)
It is.

Not sure where you got that quote from but it does not refer to Section 13(2) of the Act.

Section 13(1) clearly states:

"13. (1) Subject to this Act, the author of a work shall be the first owner of the copyright therein."

Note that author refers to "creator" or, in our case, photographer.

The exception to this exists under Section 13(3) dealing with "Work made in the course of employment" but, again, I believe it refers to situations where you truly become a paid employee, in the traditional sense, of another person or a corporation.

I seriously doubt that being contracted to do team and individual portraits for a minor hockey team makes you an employee of either the team or the parents any more than hiring a plumber makes him your full and legal employee for the duration of time it takes him to fix your leaky toilet.


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Karl ­ Johnston
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Oct 25, 2009 23:27 |  #9
bannedPermanent ban

http://ppoc.ca …opyright/Backgr​ounder.pdf (external link)
an interesting read
http://www.capic.org/c​opyright.html (external link)


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Living ­ Daylight
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Oct 26, 2009 05:52 |  #10

Paragraph 13 (2):

Engraving, photograph or portrait

(2) Where, in the case of an engraving, photograph or portrait, the plate or other original was ordered by some other person and was made for valuable consideration, and the consideration was paid, in pursuance of that order, in the absence of any agreement to the contrary, the person by whom the plate or other original was ordered shall be the first owner of the copyright.


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Brikwall
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Oct 26, 2009 07:20 |  #11

Mea culpa.

I had mis-read this thread, thrown off by references to employment, which are covered under Section 13(3) and not Section 13(2). As I mentioned before, there is a distinct and legal difference between a service or work-for-hire contract and an employment contract. Being engaged to do T&I for a sports team, for instance, does not meet the legal definition of an employee.

Anyway... seems to me the easy solution, in lieu of changes to the Act, is to either have a written contract or to provide a disclaimer on order forms stating that copyright is retained by the photographer. After all, Section 13(2) applies only "...in the absence of any agreement to the contrary..." So, cover your ass by making an agreement to the contrary. I do...


Dan
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aschwartz0123
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Mar 05, 2011 13:07 |  #12

There is an awful lot of misinformation in this thread. If you are unsure of your legal rights or obligations involving copyright, or trademarks, or patents, and if they're important to you, you would be wise to seek legal advice from an intellectual property lawyer. You would be foolish to rely only on information you got by googling it.

In Canada, if a literary or artistic work is created by an employee in the regular course of their employment, then the copyright is automatically owned by the employer. There is no such automatic operation of the law in regard to independent contractors. If you hire a firm to design a logo, or a photographer to make a photo, or a writer to write an article, generally the copyright in the work will be retained by the author (the independent contractor) unless it is specifically assigned in writing to the purchaser of the work. (NOTE: moral rights cannot be assigned; the independent contractor could waive them - again in writing )

So please note: The Copyright Act of Canada does not contain a "work made for hire" concept that is comparable to that contained in the 1976 Copyright Act of the United States. Thus, while many categories of work created by independent contactors in the United States may qualify as works made for hire, such that the copyright therein is owned by the hiring party, the same does not apply in Canada. In Canada, in the absence of a written assignment of copyright, an independent contractor will own the copyright in the work he/she creates.




  
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Bosscat
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Mar 05, 2011 13:53 |  #13

So in laymans terms you are saying that a freelance event photographer owns the copyright to all photos they take, unless they have been contracted by a party to take photos specifically of a certain particpant in an event?

Why is Canada so whacked out and always pulling for the other guy instead of their own people anyways?


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RDKirk
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Mar 05, 2011 19:29 as a reply to  @ Bosscat's post |  #14

So please note: The Copyright Act of Canada does not contain a "work made for hire" concept that is comparable to that contained in the 1976 Copyright Act of the United States. Thus, while many categories of work created by independent contactors in the United States may qualify as works made for hire, such that the copyright therein is owned by the hiring party, the same does not apply in Canada. In Canada, in the absence of a written assignment of copyright, an independent contractor will own the copyright in the work he/she creates.

You're rather continuing with the misinformation.

In the US, in fact, there are two requirements to be met for a work to be considered "work for hire": One, that the work fit within certain categories; two, that the written contract specify it as a "work for hire."

There have been cases where the work fit within the "work for hire" categories, but the contact lacked the proper "work for hire" wording...so the court found the copyright to belong to the creator.

There have been other cases in which the contract included "work for hire" words but the work did not fit within the categories...so the courts again found the copyright owned by the creator.

In the US, no work by an independent contractor would qualify as a "work for hire such that the copyright therein is owned by the hiring party" in the absence of a written contract that so made it and work that fit the proper categories.

In practice in the US, if the party commissioning the photograph really intends to gain the copyright, he needs language that explicitly transfers the copyright. "Work for hire" language is unreliable for that purpose.




  
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ssim
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Mar 06, 2011 00:59 |  #15

aschwartz0123 wrote in post #11961468 (external link)
There is an awful lot of misinformation in this thread.

You realize that your resurrected a thread that was started over 3 years ago. I don't dispute what you are saying and I don't have the time to read the whole act. As this was your first post you seem to be very knowledgeable on this subject. Care to share your credentials so that if people read this thread they know who to believe.

The internet is full of forums where people hide behind anyonimity and those reading don't know who to believe. There are some here that actually share their real names. I'm not asking for your name and address just if you want people to accept your post as gospel they would probably feel more comfortable if you shared how you became so conversant on a given subject. There are some lawyers that do post here and are very good on copyright laws in the US, most other countries are left uncovered without a resident authority that residents could resort to for questions.


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Canadian work for hire definitions and copyright ownership
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