The following is being circulated to producers throughout Canada by the Canadian Media Production Association:
1. The Copyright Modernization Act
Many provisions of the Copyright Modernization Act (Bill C-11) came into force on November 7, 2012 which result in, among other things, a change in Canadian copyright law as it relates to photographs. Generally, photographers are now granted the same authorship rights as other creators, and therefore photographs are now treated in the same manner as all other “works” (e.g. novels, poems, musical compositions, paintings, etc.) for the purposes of identifying the author and owner of the work, and for calculating the duration of copyright in the work. Photographers, as the authors of their own photographs, are now also considered the first owners of copyright in their photographs. The duration of copyright protection for photographs is set at the life of the author plus 50 years, bringing it in line with all other copyrightable works.
This default ownership in favor of the photographer now applies even in the case of commissioned photographs, unless there is a written agreement to the contrary between the photographer and the commissioning party. The new default ownership provisions do not apply if the photograph was created by the photographer as a “work made in the course of employment”. That is, if the photograph was taken by the photographer in the course of his/her employment, even though the photographer remains the author of the photograph, the employer becomes the deemed owner of the photograph.
2. What does this mean for your contract with photographers/ location scouts/anyone else taking photographs for your production?
This means generally that producers and their production companies are no longer automatically deemed to be the owners and/or authors of photographs that they pay for from unit publicists or others working on a production, unless they are taken by individuals working under employment contracts.
3. How to protect yourself as a producer?
a. ensure that contracts with unit publicists and all other contract/freelance/temporary crew (location managers, for example) contain express language regarding the ownership by your production company of any and all copyrightable work created by such individuals, including without limitation, photographs;
b. although photographs taken by full-time and/or part-time “staff” production personnel are deemed to be owned by your production company (i.e. as works made in the course of employment), it is always best to err on the side of caution and ensure that all employment contracts with employees who may, in the course of their employment/position be required or requested to take photographs on a production, contain express wording that your production company is the owner of all photographs and all other copyrightable work prepared and/or created by the employee;
c. although the moral rights provisions of the Copyright Act have not changed with respect to works in general, because moral rights are tied to authorship (as opposed to ownership), it’s particularly important to ensure that your contracts contain an express waiver (as opposed to a grant or assignment) of moral rights from the photographer in favor of the production company in and to photographs (or other copyrightable works) created by the photographer; and
d. if you are thinking about using/reproducing older photographs in your production that were previously commissioned by a corporation, be careful about determining whether such photographs are in the public domain or still protected by copyright. The new copyright regime extends the protection for such photographs beyond 50 years in certain circumstances.
For more information on this topic, we suggest you contact your entertainment lawyer