This article explains copyright laws and legal rights to consider when using images for your business.
Image use is highly effective in marketing a business. Photos, illustrations, graphics, and other visuals are very successful in creating interaction and delivering a message to the viewers. If you were to think of marketing materials you have seen, it is extremely likely that the message was accompanied by some sort of imagery to reinforce what the material was communicating. While there are many aspects involved in image use such as aligning with the brand of the company and delivering the right message, image use laws are important to understand when employing images for promotional material. In this article we explain copyright and legal rights involved with using images for a business.
Check out Part 1 in this series for a brief description of copyright and legal rights, along with the use of stock photos as a common solution for promotional use of images.
First, it is crucial to understand that images, including photos, illustrations, graphic designs, etc. are considered artistic works which makes them intellectual property protected by the copyright act in Canada. Copyright is the exclusive legal right to produce, reproduce, publish or perform an original artistic, literary, musical, or dramatic work. While generally original work is automatically protected by copyright laws in Canada when created, they can also be registered, a process which provides a certificate of registration that can then be used in court as evidence of the protection. There are 3 conditions that must be met to be protected by copyright:
1. Originality – Must be the result of your own creativity using your own skill and judgements to create the work. Copying someone else’s work is not originality.
2. Expression – Copyright protects the expression of ideas, not the ideas themselves. If you write a book about a mermaid that dreams about living and walking on land, that doesn’t mean someone else can’t write a book about a mermaid that dreams of living and walking on land.
3. Fixation – The work must be fixated in a material format such as paper, video recordings, audio recordings, hard drives or memory cards.
Owning the copyright of a work means you have the right to prevent others from reproducing the work or copying a substantial portion of it without your permission, and also have the exclusive right to commercially benefit from its use. There is however a difference between ownership and authorship. The creator of an original work will always be the author, although may not always be the owner. An individual or legal entity can become the owner of a work through a transfer of ownership. It is important to understand this distinction, as the life of the copyright protection is dependent on the life of the author. Copyright protection generally lasts the duration of the author’s life, plus 50 years after the end of that calendar year. This difference is also important as the copyright includes moral rights for the author, which includes:
- Attribution – To be credited with the work, including anonymity or the use of pseudonyms.
- Integrity – The work cannot be modified or used in association with a product or service in a way that causes prejudice to the author’s honour or reputation.
When it comes to taking photographs of a person that will be used for commercial use, their right to privacy is protected under federal legislation in Saskatchewan, which is called the Personal Information Protection and Electronic Documents Act (PIPEDA). This act explains that a business generally can’t collect personal information about a person then disclose it for commercial conduct without their consent. Taking an identifiable photo of someone is personal information, which means businesses require consent to take a picture of someone. There is also consent required to disclose that picture, whether that be for use in a magazine, printed advertisements, on a website, or social media for example. Unfortunately, asking the question “Can I take your picture,” is not legally sufficient for a business to take a photo of an individual and use it for promotional purposes to be viewed by the public.
Beyond legislation, there are also common law rights in Canada that a court may recognize if a lawsuit is initiated by the subject (person) in a photograph. The person may be able to stop publication of the photo, and even receive damages from a business if it violates their rights.
This basically comes down to 2 kinds of common law rights: privacy rights, and publicity rights.
1. Privacy rights means a person can prevent others from seeing their image unless they give their consent.
2. Publicity rights give people the right to make money on their own image. We are allowed to create our own brand based on our person and make money off that brand, which means other people are unable to exploit our image without our consent.
The wise thing to do when photographing people for business activities is to obtain proper consent from all identifiable individuals in photos by having them sign a waiver or release form. Written evidence is the best evidence to cover the business legally. It is important to remember that consent must be obtained for both collecting (taking the photo) and disclosing (publishing the photo) if that is the intention. When obtaining consent, be clear about how the business intends to use and disclose the image. For example, clearly explain in the waiver that the photo will be used for the website, or social media. As a final note, be very careful with what logos or trademarks are visible in photos as well, such as clothing or jewellery, as these are considered works of art, which are also protected by copyright legal rights.
Know the Rights to Use Images for Your Business Right
When using images for your business, it is important to know the rights in order to use them right! For copyrights, it is important to understand the owner vs. the author of the artwork, which are both protected by copyright laws. As for other legal rights, there is federal legislation as well as common law that applies to taking identifiable photos of a person, as these photos are considered personal information. The best practice is to get written consent from any identifiable people in photos being taken and used within a business, as this will protect the company from legal actions! When in doubt, it is always a great idea to consult the company’s legal team for advice on image use.
Part 4, the final part in this series on image use for businesses, explains different ways to provide access to images within the company.
Download this resource Using Images for Your Business: Part 3 – Copyright and Legal Rights.