December 8, 2014
Photos, design and the law of ‘copy and paste’BY ROB KENNALEY AND DARCIA PERRY
Technology has changed the rules of the game when it comes to sharing photographs. With the prominence of digital cameras, smartphones and the internet, a single photograph can be circulated around the globe in seconds. On the one hand this means that photographs of loved ones, milestone events and achievements can be shared and viewed instantly online, but what about the rights associated with distributing those same photographs on the internet? What rights do website owners have with respect to the unauthorized use of their online images and website design?
Many businesses do not consider the legal repercussions of the images selected for use on their company homepage, Facebook profile or other social networks. There are several copyright and privacy laws that apply to photography, and potentially to website design. “Artistic work” is defined by the Copyright Act to include paintings, drawings, maps, charts, plans, photographs, engravings, sculptures, works of artistic craftsmanship, architectural works, and compilations of artistic works. The author of the work is considered to be the owner of copyright in same and may assign the copyright to another person. While anyone is permitted to use a copyrighted work in a fair way for research, private study, criticism, review, and news reporting purposes, the owner of a copyright, in relation to a work, has the exclusive right to reproduce, communicate “to the public by telecommunication” and exhibit that work.
Owner has exclusive rights
Photographs are considered to be “artistic works” under the Act. The copyright owner of a photograph will generally be the photographer unless it was taken during the course of employment or apprenticeship, where the copyright will belong to the employer, even if the photographer uses his own camera and film. However, contractual agreements can alter this default provision.
In the case of online photographs, the copyright owner is the only person permitted to copy, print, download/upload, or publicly display the photograph. As a result, those who copy and paste others’ images to their website, without the consent of the copyright owner, could be liable for infringement of copyright. Further, the unauthorized use of photographs of another’s work product, on one’s website, may attract liability for ‘passing off’ on the basis that the photographs could be considered to be a misrepresentation of services, creating the presumption that the user of the unauthorized photograph is, or is sponsored by or associated with, the business of another.
Canada does not have a mandatory copyright registry, and determining whether or not a photograph is in the public domain can be challenging. Copyright protection in a work generally lasts for the lifetime of the author plus 50 years following the end of the calendar year in which the author dies. Website owners should be aware of the risks associated with using unauthorized photos due to the increased prevalence of service providers that are hired to scan and search the internet for unauthorized images, owned and licensed to their customers, being used on others’ websites, Facebook pages and social networks. Similarly, a competitor may search pages to see if another is passing off the competitor’s work as their own.
Respect web designs as original work
Similar to photographs, the graphic design of a website may also be considered to be an artistic work if the website design is sufficiently original to entitle its author to copyright protection. An author’s copyright in the design of a website can include, “the look, layout and how the webpage appears to operate.” The overall arrangement of commonplace elements such as colours, shapes and designs can result in an original artistic work for which the author is entitled to copyright protection. Such a work cannot be copied without the author’s consent. As a result, a claim for copyright infringement in the graphic design of a website will be established where: The design is original, where there has been copying from that work and where a substantial portion of the work has been reproduced. Whether there has been substantial copying of a website’s design will be a question of quality, as opposed to quantity, and cannot be defined. The Courts will have regard to the overall arrangement of the components.
Copyright infringers are liable to pay damages to the owner of the copyright for the unauthorized use, and, in addition can also be liable for profits made from the infringement, statutory damages up to $20,000 and punitive damages. It is accordingly best to assume that all images available online are protected by copyright, unless there is clear evidence to the contrary. In addition, of course, lifting a substantial portion of someone else’s website design should be avoided. Upon notification that there is an unauthorized use on your website, immediate steps should be taken to investigate the claim and to verify copyright ownership. One should then consider immediately removing the identified image or problem areas. Continuing to use the image or layout may aggravate a potential claim, and increase the odds that you will be found liable for infringement of copyright.
Rob Kennaley and Darcia Perry practice construction law in Toronto. They speak and write regularly on construction law issues and can be reached for comment at (416) 368-2522 or at firstname.lastname@example.org. This material is for information purposes and is not intended to provide legal advice. Readers who have concerns about any particular circumstance are encouraged to seek independent legal advice in that regard.