Copyright Modernization Act

November 8, 2021

An important amendment to the Canadian Copyright Act became law, Wednesday, as photographers now have de facto copyright over the images they create.

Bill C-11, the Copyright Modernization Act, contains provisions that affect artists of various disciplines, including musicians, authors, sculptors and illustrators. But it's an amendment to Section 32.2 that most concerns the relationship between models, agents and photographers.

In the past, if the model paid the photographer (thereby classifying the shooter as an "assignment photographer"), the model held the copyright, unless there was a separate agreement to state otherwise. In essence, this meant the photographer couldn't display couldn't even take credit for the images without the consent of the model (or her/his agency).

Although this is an important victory for photographers, following years of campaigning by the Canadian Association of Professional Image Creators (CAPIC), copyright still only extends to the photo itself, and not to the individual elements within it. In other words, according to CAPIC's Copyright Chair, André Cornellier, models are protected by Canadian privacy laws, and must still grant photographers the right to publish their image.

In the case of paid tests, there is still an implicit agreement, according to Cornellier, that the model is buying the rights to use the photos for their own promotion. Unless stated in writing, the images can still appear in the model's book, comp cards and agency websites, but cannot be used for other commercial purposes.

One quirk this amendment creates, is models now technically need the photographer's permission to use any image they haven't paid for, even if they appear in magazines. Cornellier tells Modelresource that "in this case the model did not pay the photographer and the model has to ask permission from the photographer."

Copyright protection in Canada also extends to what are called Moral Rights, meaning photographers may now insist on credit when their images are used on agency websites and comp cards, and can refuse to allow alterations, including cropping.

So, realistically, how does this change the way agencies and models deal with photographers? I don't expect much will be different. Most of what happens now is friendly, and images float around without much discussion or dissension. When photographers shoot paid tests, agencies rarely object to them using the images for their own promotional purposes. As for models using tear sheets, it's going to take a real dickhead of a photographer to insist on payment or written permission to use published work.

Where the biggest change might occur is that more photo releases will likely be drafted up, revised and signed to clarify usage in advance. In the end though, we all rely on each other, and most of what happens will likely continue much as it is.

One Toronto agency recently started insisting photographers sign something giving that agency a say in where (or even if) anything gets published from a creative. Technically the models' rep always had the power to prevent images from going out, but with this new shift giving photographers a greater stake in their own work it will be interesting to see if more start insisting on terms of their own.

The new provisions of the Canadian Copyright Act come into effect today, and do not change the copyright status of anything photographed prior to November 8th, 2012.

Dan Grant


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