Photography has become more and more democratic, so we often forget that there are rights behind all this – both for the photographer and the people photographed. This article is therefore intended for non-photographers, amateur photographers and professionals new to the profession, in order to remind them of certain essential rights (here, French and Canadian).
Copyright is based on the simple principle that the physical person who creates a work, i. e. the author, controls how it is used. The author is the immediate owner of the copyright as soon as the work is created: the law does not require any formality, filing or registration to guarantee the protection of the photos. Copyright gives the author the exclusive right to produce or reproduce all or a significant part of his work, to publish it, to present it to the public, etc. : a work may not be copied or reproduced without the consent of its author. The fact that the author disseminates his work on the Internet and social networks is not enough to make it a public property. Thus, it is not allowed to copy a photo or image found on a search engine, website or social network.
Photographing for a client does not give him any ownership rights: photographing for a client is a provision, and not a transfer of rights. Unless otherwise stipulated in the contract, it does not grant it all the rights of exploitation, modification, etc.: any exploitation of a photo that is not the subject of a contract is illegal.
REPRESENTATION AND REPRODUCTION OF PHOTOS BY A THIRD PARTY: PATRIMONIAL RIGHTS
Patrimonial right governs the exploitation of the work: it belongs exclusively to the photographer as soon as he creates a work and not to the person who commissions it. It consists of two parts requiring the author’s written authorization: the right of representation (communication of his work to the public: exhibition, television, Internet…) and the right of reproduction (fixation of his work on a medium allowing it to be communicated to the public: publishing, display, television, Internet…).
Not respecting this rule is illegal and constitutes a counterfeiting offence. A right holder may bring any appropriate action against a person exploiting his work without his consent in order to put an end to the infringement of his right, and claim damages in order to compensate for the damage suffered.
MODIFICATION AND DENATURATION OF PHOTOS BY A THIRD PARTY, MENTION OF CREDITS: MORAL RIGHTS
All creators of original works hold the moral rights to their works, i.e. the right to associate their name with their work (credit) and the right to the integrity of their work (without the work being trimmed, cut, cropped, cropped, altered or cut).
The copyright owner has the exclusive right to create derivative works from his work, that is, new works inspired by the original work or adapted. Any modification or distortion of the image (cropping, editing, colours, etc.), without the author’s agreement, is a violation of the respect of the integrity of the work.
The mere fact of indicating the source or name of the author of the work being reproduced does not in any way exempt the author from obtaining the required authorizations before reproducing a work. Credit (putting the names of photographers) is a legal obligation: it is the right of paternity, an essential element of moral rights. It is a perpetual, inalienable and imprescriptible right.
There is no general legal provision applicable to the authorization given by a person to photograph him/her. In many situations, particularly public ones, a photographer is free to photograph a person: this is the right to freedom of expression. The persons photographed are not protected by intellectual property rights. However, a photographer is not free to use the image in any way he sees fit. The subject has the right to an image (his image has an economic value and he has the right to exploit his own image) and the right to respect for his private life: he has the right to oppose the commercial use or public dissemination of his image.
USE OF ITS IMAGE
All commercial use of one’s own image is prohibited without the permission of the author of the photo. The customer can give the photo to another individual, but he cannot sell it commercially. Nor can he give it to an organization (for example, the office for which he works), so that the company can use it in its communications and on its website, because this corresponds to a commercial use, related to marketing and public relations.
WHAT HAPPENS DURING A PHOTO SERVICE OR PURCHASE OF A PRINT?
Buying a photo service or a print means that the customer becomes the owner of the photographs of the service / print in question, but not of the image itself. The author alone holds the rights to his works. These exploitation and distribution rights remain its sole property and are not dependent on the artistic quality of the image, but on the use made of it.
In photography, an “original work” is considered to be an image taken by the author, printed by him or under his control, signed and numbered, in all formats and media combined.
The purchase of a photo service or a print results in a cession of photographs / original work. The note provided with each photo service / print is a bilateral contract between the author and the buyer, in which the author notifies the transfer of rights of use for private purposes, to the exclusion of any other and for consideration according to the author’s rates. The buyer is the owner of the medium, but not of the image shown on it.
All exploitation, distribution, representation, counterfeiting, total or even partial reproduction of the work is prohibited without the written consent of the author.
Cover photo : © 2015 Lise Emond