Canada laws

Discussion in 'Ethics and Philosophy' started by dxphoto, Mar 22, 2007.

  1. dxphoto

    dxphoto Member

    Messages:
    196
    Joined:
    Nov 25, 2005
    Shooter:
    35mm
    Is there any restrict on taking pictures in public in Canada??? Such as, it is ok to take street pictures in Canada cities.
     
  2. Michel Hardy-Vallée

    Michel Hardy-Vallée Membership Council Council

    Messages:
    4,351
    Joined:
    Apr 2, 2005
    Location:
    Montréal (QC
    Shooter:
    Multi Format
    Ha! Here's the funny thing about Canada: you can take pictures of anyone you please (within the limits of National Security of course), but you can't SELL or PUBLISH these pictures without proper model release.

    At least that's what the Supreme Court judgement on the Duclos affair says, which you can read in English here:
    http://csc.lexum.umontreal.ca/en/1998/1998rcs1-591/1998rcs1-591.html

    Or in French here:
    http://csc.lexum.umontreal.ca/fr/1998/1998rcs1-591/1998rcs1-591.html

    The basic contention is between the right to control one's image and the right to information. There are no "artistic rights" in Canada. Either your picture is publicly interesting (like a news picture) and therefore you don't have to ask permission for publishing it; or your picture is not newsworthy and then your subject's right to control how his/her image is being used take precedence, which means Screw you HCB, we won't hear any of your bleeding heart humanistic art!

    You have to bear in mind that the Supreme Court judgement is in fact just a validation of an earlier judgement that was made in a lower Québec court, so that if someone really is to blame, it's the first judge who accepted the elements of proof, which are disputable according to the dissenting judges (this was not a unanimous decision). The Supreme Court decided to take the conservative approach and simply respect the prior decision, which they often do.
     
  3. BWKate

    BWKate Member

    Messages:
    1,258
    Joined:
    Feb 28, 2005
    Location:
    Victoria,B.C
    Shooter:
    Multi Format
    Does this law apply if you have the images of said people in an art gallery and it is not deemed "commercial"?
     
  4. gr82bart

    gr82bart Subscriber

    Messages:
    5,299
    Joined:
    Mar 1, 2003
    Location:
    Los Angeles,
    Shooter:
    Multi Format
    That applies only in Quebec not in the rest of Canada.

    A little known fact about copyright though is in Canada, the copyright owner is the person who PAID FOR THE IMAGE not automatically the photographer.

    Regards, Art.
     
  5. jd callow

    jd callow Moderator Staff Member Moderator

    Messages:
    8,003
    Joined:
    Jan 31, 2003
    Location:
    Milan
    Shooter:
    Multi Format
    Art,
    how does that apply to music, books, etc...?
     
  6. thebanana

    thebanana Subscriber

    Messages:
    2,650
    Joined:
    Nov 4, 2004
    Location:
    Manitoba, Ca
    Shooter:
    Medium Format
    Theoretically, you can be on public property and photograph to your heart's content, but in recent years what constitutes "public property" isn't always clear. For example, most "public" facilities such as skating rinks, libraries etc. have instituted their own rules about photography (as in "not allowed"). Taking photos of kids in public parks is also generally frowned upon, unless they're your own.
     
  7. Michel Hardy-Vallée

    Michel Hardy-Vallée Membership Council Council

    Messages:
    4,351
    Joined:
    Apr 2, 2005
    Location:
    Montréal (QC
    Shooter:
    Multi Format
    Actually, what I've read so far about the decisions was just that the rest of Canada was in a limbo because the case was decided in Québec first. If you have some references or if someone has any legal experience, I would really like to have more details.
     
  8. Michel Hardy-Vallée

    Michel Hardy-Vallée Membership Council Council

    Messages:
    4,351
    Joined:
    Apr 2, 2005
    Location:
    Montréal (QC
    Shooter:
    Multi Format
    AFAIK, if you are selling prints, you are making commercial usage. Again, the important point is that with respect to this judgement, art does not exist. But as Art (namesake!) has mentioned, this may apply differently in other provinces.
     
  9. cowanw

    cowanw Member

    Messages:
    1,289
    Joined:
    Aug 29, 2006
    Location:
    Hamilton, On
    Shooter:
    Large Format
    I presume your question relates to getting into trouble taking pictures, not copyright. And any view that can be seen from public property is allowed to be photographed for your personal usage.
    Bill
     
  10. MattKing

    MattKing Subscriber

    Messages:
    16,829
    Joined:
    Apr 24, 2005
    Location:
    Delta, BC, Canada
    Shooter:
    Multi Format
    This case was a case originating in Quebec, decided under Quebec law. The Quebec statute cited appears to be a codification of certain provisions of Quebec civil law, which is distinctly different from the common law provisions in the other provinces, and territories.

    My quick reading of the decision, (both the majority reasons, and the dissents), indicates to me that there is essentially no guidance on the question in respect to any place other than Quebec.

    In essence, the compensatable right on which the claim is founded appears to arise from Quebec civil law, as codified in a Quebec statute.

    The only general guide I might take from this is the impression that the court is sympathetic to the interests of the person whose photograph was published, without their permission being sought.

    My sense is that the photograph in question essentially featured the claimant, and might on its face imply that it was published with the claimant's consent.

    For a more informed opinion, you will need to hear from a Quebec lawyer.

    Matt
     
  11. Michel Hardy-Vallée

    Michel Hardy-Vallée Membership Council Council

    Messages:
    4,351
    Joined:
    Apr 2, 2005
    Location:
    Montréal (QC
    Shooter:
    Multi Format
    Matt, thanks for your careful reading. The story of the photo goes more or less as such: girl sits in a doorframe during the day on a busy street; photographer walks by and snaps a quick grab shot, of which the girl is unaware. If you can find the photo online, you'll see that it is actually pretty ordinary, and I would say boringly banal. But to each his own taste.

    Later on, the photo is published in a small-volume art publication with a fittingly tepid poem beside it. I think it was about "fugitive beauty" or some similar cliché.

    And now, here is the crux upon which this case rest: eventually, some of the girl's friends see the picture in the aforementioned magazine, and being teenagers like her, they make fun of her.

    This is the cornerstone of this judgement. The lower court admitted the teenagers' mockery as element of proof. It is what the dissenting SC judges challenged, because it is the element of proof upon which one can mount a case to the effect that the girl's right to her image has been violated, and that she suffered thereof. If you drop this element of proof, most of the case goes away. If you keep it, then the legal interpretation is pretty much straightforward.

    Needless to say, this was a tremendous event at the time it happened, and every photographer was paranoid about what would happen to their favorite job. Even news photographers were getting worried.

    So in the end, as Matt and Art have been saying, this says nothing in an explicit manner about similar situations in other Canadian areas, but eventually something might happen that could trigger a similar decision, who knows.
     
  12. Sirius Glass

    Sirius Glass Subscriber

    Messages:
    20,586
    Joined:
    Jan 18, 2007
    Location:
    Southern California
    Shooter:
    Multi Format
    Ok, I think I know how to handle this. If I, a Yank, cross the border and photograph this girl as stated in the post above, and the rest of the scenario plays out, then I am Scott free [reference to the Dred Scott case, US law, not a comment or slight to people north of Hadrian's wall in the British Isles] .

    Now if a Canadian were to travel to the US, the same scenario works because the cross border situation makes it hard to persue.

    hmmm ... therefore I conclude that we should take such photos only in other countries. :tongue: :tongue: :tongue: :tongue:

    Am I on to something here???

    Interested Readers Want To Know!!!

    Steve
     
  13. copake_ham

    copake_ham Inactive

    Messages:
    4,090
    Joined:
    Jan 26, 2006
    Location:
    NYC or Copak
    Shooter:
    35mm

    Matt,

    I'm curious if, given the quite broad scope of the Quebec statute, whether it acts as a means of prior restraint against "the paparrazzi"?

    Down here, as I understand it,the "newsworthiness" of a candid celebrity shot overrides both the privacy and model release counter-arguments.

    How do you think the situation would play out in the common law provices?
     
  14. Sponsored Ad
  15. bjorke

    bjorke Member

    Messages:
    2,032
    Joined:
    Aug 17, 2003
    Location:
    SF & Surroun
    Shooter:
    Medium Format
    http://www.photopermit.org/?page_id=67

    Third one down
     
  16. dxphoto

    dxphoto Member

    Messages:
    196
    Joined:
    Nov 25, 2005
    Shooter:
    35mm
    Thanks for all the replies.

    Now after reading that girl's story, I am wondering, in either countries, US or Canada, if you take a picture of some stranger, the you put the pic online, then some one used the picture for commercial use or abused the picture and somehow offend the subject in the photo. And the photographer doesn't know all these, will he still be responsible for that abuse?
     
  17. Craig

    Craig Subscriber

    Messages:
    784
    Joined:
    Apr 8, 2004
    Location:
    Calgary
    Shooter:
    Multi Format
    I fired the original question off to a lawer friend of mine who is a Crown Proscutor (and also a photographer), and has spent a bunch of time working at the Supreme Court, and this was his off the cuff comment:

    "If I recall correctly, the case turned on specific
    provisions of the Quebec civil code which have no
    analogue in the common law. The general law about
    using someone's photo for a commercial purpose is the
    same -- you can't appropriate their image to something
    like advertising without permission or compensation. "
     
  18. MattKing

    MattKing Subscriber

    Messages:
    16,829
    Joined:
    Apr 24, 2005
    Location:
    Delta, BC, Canada
    Shooter:
    Multi Format
    George:

    I am reluctant to express an opinion on the effect in Quebec, of the Quebec statute. My knowledge of Quebec law, and Quebec realities in respect of that law, is just too limited.

    With respect to the common law provinces, I think it is just too hard to say. I expect that the Courts would not be particularly sympathetic to a photographer who sought to commercially exploit a found shot.

    On the other hand, if the photograph is simply an interesting image which includes a person in a public place, then if that person sought to make an enforceable claim, then they would most likely have to show some real (and foreseeable) hardship or loss - teenage self consciousness probably wouldn't cut it.

    I think it would take a very obvious egregious example before a Court would be willing to extend the boundaries of the intentional torts (assuming no legislation to that effect).

    It has always seemed to me that much of the behavior of the paparrazi should be actionable (as assault, if nothing else), whether or not they actually take pictures.

    Matt
     
    Last edited by a moderator: Mar 23, 2007
  19. copake_ham

    copake_ham Inactive

    Messages:
    4,090
    Joined:
    Jan 26, 2006
    Location:
    NYC or Copak
    Shooter:
    35mm
    Matt,

    I would not be surprised to learn of a State or lower Federal court down here ruling in this way - particularly in California where there is a lot of pressure (suprise) to limit the papparazzi. Generally assault torts carry low damage awards - and are notoriously difficult to win because of the "reasonable fear of harm" threshhold.

    What many folks do not realize is that with the modern tools such as cell phones, GPS units etc., these photogs have increasingly engaged in extremely aggressive behavior. Such that, in addition the assault argument on the tort side, I think that reckless endangerment, as a criminal activity, may become a public policy tool used to control them.
     
  20. Daniel_OB

    Daniel_OB Member

    Messages:
    420
    Joined:
    Jun 9, 2006
    Location:
    Mississauga,
    Shooter:
    Multi Format
    I never had any problem even photographing police on Toronto streets.
    That law about photographing is so long to read and tricky that I do not see any sense to know it or even to read it. The same think can be interpreted on so many ways, and end case is depend mastly judge woke up on left or right leg. The best is always try NOT to get involved with security or police around any problem. Smile and do just anything possibele to get out of their circle.
    And to finish: how about all that cameras in stores that tell me "you are potential thief, and my camera follows you"? Or what else can be reason to take my pictures. That is something to accuse, not honest artist.
    Well .... reality reality ...
    www.Leica-R.com
     
  21. gr82bart

    gr82bart Subscriber

    Messages:
    5,299
    Joined:
    Mar 1, 2003
    Location:
    Los Angeles,
    Shooter:
    Multi Format
    John,

    It only applies to photography. Photography in Canada is not classified as art but as photography - separate entity all in itself like music and books are separate entities.

    Regards, Art.
     
  22. filmbug

    filmbug Member

    Messages:
    19
    Joined:
    Aug 28, 2006
    Shooter:
    Multi Format
    Putting a picture online is effectively publishing. The online world is not a sanctuary, the law does not give the Internet special status.

    Someone else takes the picture and use it for whatever purpose is violating the photographer's copyright.

    If the subject is offended by the way the stolen image is used, is the photographer liable? Good question. Assuming the subject had no issue with the original image, they shouldn't hold a grudge against you. I imagine, in US, they will just sue everyone.
     
  23. gr82bart

    gr82bart Subscriber

    Messages:
    5,299
    Joined:
    Mar 1, 2003
    Location:
    Los Angeles,
    Shooter:
    Multi Format
  24. Daniel_OB

    Daniel_OB Member

    Messages:
    420
    Joined:
    Jun 9, 2006
    Location:
    Mississauga,
    Shooter:
    Multi Format
    Art
    "... Photography in Canada is not classified as art but as photography - separate entity all in itself like music and books are separate entities."

    How about in US? I think it is the same elsewhere.

    If someone pays photographer to do the job he hired the photog, so the photog is employed and so all wright belongs to commissioner.
    This is very different than when you sell the prints. When I make any large scale sale (e.g. wedding) contract should say to who wright on photographs belongs. Prove for ownership can be only one single think: the negative. When photog take the pic it automatically bolongs to (only) him because he is the only one with the source of the photograph. Without the negative, I think no copyright will work, at least at resonable time loss and overall cost.

    www.Leica-R.com
     
    Last edited by a moderator: Apr 2, 2007
  25. gr82bart

    gr82bart Subscriber

    Messages:
    5,299
    Joined:
    Mar 1, 2003
    Location:
    Los Angeles,
    Shooter:
    Multi Format
    In the US, the photographer owns the copyright no matter what - unless he 'sells' his copyright away.

    In Canada, that is true.

    The copyright laws are not well known to most Canadians. Technically, if you commission a photographer to to take portraits of you, for example, you have the right to he negatives. I remember in grade school, I would get the prints and the negatives. Then in Senior public school, the photographer there was smart and he made our parents sign away their copyright and only gave us the prints, but he kept the negatives.

    Because of our proximity to the US, most Canadians assume our copyright laws are identical to the US.

    Bottom line is you have to know the laws in the country you are working in. In Canada, as a professional photographer, I would have the 'commissioner' sign away their copyright by agreement before taking a single image for them. It's been a long standing debate in Canada amongst artists and photographers.

    Regards, Art.
     
  26. haris

    haris Guest

    Strange...

    In my country who make something he/she is owner of author rights. No matter if author works as employee for other(s), maker of piece is allways owner of all author rights. Owner of actuall piece is employer, but maker of piece is owner of author rights. And author rights are valid in period of 70 years AFTER author's death.

    For example photograher who is hired by someone to make photographs for commissioner, or photograher who is emplyee of magazine or newspapers, photographer is allways owner of author rights. Commissioner or magazine/newpapers are owners of photographs, but photographer is owner of author rights.

    In practice that means next: Commissioner or magazine/newspapers have rights to use photographs for purpose for what they hired photographer, but they can't modify or reselling photographs to third party (unless they arrange that right before with photographer).

    On the other hand photographer can, without asking permission from commissioner or magazine/newspapers he/she works for, to use his/hers photographs for exhibitions, personal advertizing, portfolios, publishing books of his/hers photographs, and every other using of photographs except using which will make damage to previous commissioner or violate previously made agreement between photographer and commissioner.

    Next, author become owner of author rights simply by fact that he/she made something. There is no need to get certificate from some body. Also, author can NOT reject from its right. He/she gets rights automatically and those rights can not be taken away by nobody, and not by author itself. Author can share those rights (give rights to others too) with others, but even in that case author keeps its rights, can not be left without rights. There is no legal way to take authors rights from author, nor author can give up from his/hers rights.

    It is completely different thing that nobody here respect laws about author rights...
     
    Last edited by a moderator: Apr 2, 2007