Copyright and Taking Pictures of Sculptures

Let’s say you are a sculptor. You’ve recently completed a new piece and would like to display it publicly. You show your work for a few months at a local coffee shop (with their permission, of course!) and get great reviews. A month later, however, in a different coffee shop, you see a photograph of your sculpture, taken by another local artist, hanging on the wall.

As the creator of the sculpture, the main law you should be consulting is the CopyRight Act: Section 3. This article explains that as the owner of the copyright in the sculpture, you have the sole right to reproduce the sculpture (or any substantial part of it) in “any material form whatever”1. This means that if anyone reproduces it in photographic form (i.e. takes a picture of it) without your permission, they have infringed your copyright. That said, there are some big exceptions:

  1. If the sculpture is “permanently situated in a public place or building”, it is not an infringement of copyright to reproduce it in photographic form2. While this might not apply to a temporary exhibition in a coffee shop, if you then sell the sculpture to the city of Montreal and they place it permanently in Parc Lafontaine, you no longer have the exclusive right of reproduction.
  2. Even if your work is not permanently situated, not all photographs of your sculpture will be infringements of your copyright. Some might qualify for the “fair dealing” exception, which states that so long as the photo was a) for the purposes of research, private study, education, parody, satire, criticism, review, or news reporting and b) “fair”, no infringement took place.3 Whether something is “fair” depends on an assessment of “the purpose, character, and amount of the dealing; the existence of any alternatives to the dealing; the nature of the work; and the effect of the dealing on the work”.the purpose, character, and amount of the dealing; the existence of any alternatives to the dealing; the nature of the work; and the effect of the dealing on the work”.4 In the case of the local artist and the competing coffee shop, none of these would apply, but if the Montreal Gazette displays a photo of your sculpture in a review of your work, it’s a different story.

Lastly, it’s important to note that a copyright most likely exists in the photograph separate from the sculpture. So long as the photo expresses an idea and is the product of an “exercise of skill and judgment”, it too will receive copyright protection.5 This protection, however, does not mean that it cannot also be infringing your original work as well. It simply means that you cannot reproduce the photo for your own purposes without the photographer’s consent – even if the sculpture is yours.

Now, let’s turn to a different example. Say instead that you were commissioned by a company to make a sculpture for their offices. Later you see that they have been using photographs of that sculpture in brochures advertising their services, without having asked for your permission. Are they infringing your right to reproduce?

Well, it depends on whether you remain the owner of the copyright. Though the creator of the work is normally the owner of the copyright,6 there are two ways in which copyright over the sculpture might have moved to the company. First, the contract between you and the company may have transferred the copyright in the work to them. Second, the sculpture may have been made “in the course of employment” under a “contract of service”, in which case the company automatically received copyright instead of you.7 If this is the case, then they, not you, have the sole right to reproduce and display the work as they please – with one possible limitation.

Under the Copyright Act, the author of a work, regardless of the contractual situation in which it was made, has “moral rights” over it.8 These are the rights of integrity – to prevent alteration, distortion, or mutilation of the work that harm the author’s reputation – and attribution – the right to be associated with the work (or to remain anonymous). Usually a contract to produce a work stipulates that the author waive the ability to exercise these rights. If there is no waiver of moral rights in the contract, however, they remain available, and if the use of your sculpture in a brochure prejudices your reputation (and you can prove it!), the company would be infringing your right of integrity.

[1] Copyright Act, RSC 1985, c C-42, s 3.

[2] Ibid, s 32.2(1)(b)(ii).

[3] Ibid, ss 29-29.2.

[4]Society of Composers, Authors, and Music Publishers of Canada v Bell Canada, 2012 SCC 36 at para 11, 2 SCR 326.

[5] CCH Canadian Ltd v Law Society of Upper Canada, 2004 SCC 13 at para 16, 30 CPR (4th) 1.

[6] Copyright Act, supra note 1 at s 13(1):“…the author of a work shall be the first owner of the copyright therein.”

[7] Ibid, s 13(3). Whether a copyrighted work was made under a contract of service is a complicated question involving elements of control (how specific were their instructions, how hands-on were they, etc.) and integration (whether you are an employee or a contractor, how often you worked with them, etc.), though it remains possible to draft the contract so that you, the artist, maintain copyright. The lesson: always read your contracts carefully!

[8] Ibid, s 14.1.