Author: Pooja Sihra
Editor: Sahil Kanaya
Artists and graphic designers either desire to – for their own personal reasons – or are frequently asked to create images/t-shirt designs/memes or even complete replicas of existing images for commercial purposes (for resale or upon customer request). However, attached to many images are jealously guarded intellectual property (IP) rights belonging to some individual or business. So, instead of winding up a defendant in an IP infringement lawsuit like Kendall and Kylie Jenner, how do you tell which images are safe to use and which ones aren’t?
In a social media driven society with dedicated platforms like Instagram and Facebook for image and video sharing, it is essential for individuals to be able to comprehend what copyrights might exist in an image or video as well as understand how intellectual property law factors in.
As a general rule, you run the risk of copyright infringement when you use an image without permission from the copyright owner. However, there are exceptions to this rule such as ‘fair dealing’ wherein the image is used for a protected purpose such as news reporting, education, research, criticism or review, and parody or satire.
It is also permissible for non-commercial user-generated content to be published and made available to the public on sites like Flickr and Pixabay. To better exemplify, the website Pixabay offers free images for the public to use which have been uploaded by users who are required to register. Upon uploading, the users waive their right to the copyright and the images can be used by others for commercial purposes without having to attribute the image with the original author and/or source. However, there is a disclaimer which states that images and videos should “not show identifiable persons in a disgraceful light, unless permission is granted” or “some images may be subject to a third-party licence”. The website makes it clear that the users are solely responsible for the content that they upload, meaning that the user is basically warrants that they own the proprietary rights to the images/videos that they upload.
But as social media consumers, individuals should be wary and pay close attention to each website’s terms and conditions of use because how images are managed vary from site to site. For instance, Instagram’s Terms of Use stipulate that users who upload an image must (1) promise that they gave the rights to their posted content, and (2) give the platform a “fully paid and royalty free transferable, sub-licence to use the content” which means that Instagram is free to license images from their site to others without infringing copyright laws (i.e. this is why we as users are permitted to “re-gram” photos). However, this freedom to replicate images within the confines of the site or app does not translate to an ability to use the images off the site or app as illustrated in Agence France Presse v. Morel, which is discussed in this article on our partner site, Mondaq.
A key piece of legislation is the Copyright Modernization Act, 2012 which discusses the issue of who owns rights in a photograph. Generally, if you take a photo, you are the copyright owner and photos are treated as any other type of artistic work such as a painting. This means that owners have certain exclusive rights to exploit their work such as the right to reproduce or sell an image.
This raises concerns regarding photos and privacy rights. In Canada, one’s image is considered to be included in the fundamental right of respect for one’s private life which means every person possesses a right to protect their image. This is especially true when a person’s image has a marketable value. In Krouse v. Chrysler Canada, Ltd. (1973) the court held that if such an image were used in a manner that suggests involvement with or endorsement of the product when, in fact, there was none, then there are grounds for appropriation of personality.
Athans v. Canadian Adventure Camps (1977) expanded upon that, stating that a person has a proprietary right in the ability to market and exploit their own image, which the law entitles protection for.
In Sale v. Barr (2003), the court ruled that the plaintiffs had a right to control the use of their trademark image, and that included the right not to have their image associated, in the public’s mind, with someone else’s work.
Artists, graphic designers and creative agencies can broadly take four courses of action to avoid getting into hot water over the use of a copyrighted image:
(a) refuse to include any images that do not have a clear open access to IP
(b) include an indemnity clause for infringement of IP to protect you from a client that is sending you images that could potentially be infringing. Here is an example clause (modify and seek counsel to make sure it’s suitable for your purpose):
[Counterparty] agrees to defend, indemnify and hold harmless [HoundCo] from and against any claim, demand, legal proceeding, action, cause of action, damage, loss, excluding loss of profits, costs, liability or expense, including professional fees and disbursements, for grossly negligent or intentional actions taken by [Counterparty], including, without limitation, the infringement of the intellectual property of a third party in its performance of the services that result in a claim of any sort against [HoundCo].
An indemnity is a promise that the client will bear the expenses and damages related to any IP infringement case that comes about as a result of the services for which you were contracted. But there’s one major caveat: indemnities are only as good as the indemnifier’s ability to pay. If you have doubts that the client will have enough or any money to indemnify you, you should look to item (c) below.
(c) get insurance: you may eventually receive a claim that your client’s indemnity (see item (b) directly above) cannot protect you from.
(d) be prepared to “take down” or remove from the public the infringing work like this beer named for Beyoncé and this Stranger Things themed pop-up bar.
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