Reproduction rights essential for photo printing

DAVID CANTON - For the London Free Press - December 4 2004 Read this on Canoe

Imagine being refused service for being too professional. Some photographers are being questioned by photo labs as to the ownership of digital images they have brought in to be printed.

The pictures apparently look too professional to be done by the person bringing them in. In some cases, retail photo labs have refused to print the pictures for fear of copyright infringement liability.

In the Copyright Act, a photograph is protected within the category of artistic work. It is the expression of the photographer's idea that is recognized as an artistic work.

Having copyright in a photograph means having the sole right to produce and reproduce the photograph or any substantial part of the photograph in any material form.

The author of the photograph who is entitled to such rights is generally the person who owned the initial negative or photograph. Depending on the circumstances, that might be the photographer or the person who hired the photographer.

Retail photo labs are concerned that consumers bringing in pictures to be printed may not be the original author of the photograph. If a photograph looks professionally done, they may wonder whether the person bringing in the image is the actual author with possession of the rights to the image.

The law on this subject was discussed recently by the Supreme Court of Canada in CCH Canadian Ltd. vs. Law Society of Upper Canada.

Publishers of books in the Great Hall Library at Osgoode Hall in Toronto sought a declaration that the library had infringed their copyright when the library and its patrons reproduced copies of their works.

The court held that the library did not authorize copyright infringement by providing self-service photocopiers for use by its patrons in the Great Library.

A person does not authorize infringement by authorizing the mere use of equipment that could be used to infringe copyright.

A similar result may arise with self-serve photo kiosks.

If you apply the same logic as in the CCH case, you could take the position that providing a self-serve photo kiosk does not make the kiosk provider liable for any infringement by users.

The owner of the kiosk does not authorize copyright infringement by allowing the mere use of the equipment.

For printing by photo lab staff, photo labs may ask customers to sign a form stating that the pictures are theirs. The goal is to offer the photo lab some protection from being accused of taking part in unauthorized copying. These forms may be kept on file and basically serve as proof that the person is not breaching any copyrights.

An alternative would be for the photo lab to include language on the receipt given when the images were

provided for printing where the customer confirms that they have the right to reproduce the photos.

Not all people bringing in photos to be legitimately printed will be the original author. Where a photograph is commissioned, the copyright belongs to the person who orders the photograph.

For example, a couple hires a photographer to take pictures at their wedding.

Since the couple has hired the photographer, the pictures that the photographer takes belong to the couple. Only if the photographer has secured the couple's permission can the photographer obtain copyright in the pictures. Photographers need only include such a provision in their standard contract.

So the right representation to ask for is not whether the customer took the photos, nor whether the customer owns the photos, but whether the customer has the right to reproduce the photos.