In an age where online image sharing is more prevalent than ever thanks to the abundance of different social media platforms, the question of who has a right to use what photographs or creative visuals may appear increasingly complicated, but the truth is that similar copyright principles that apply to a physical photograph or artistic image also apply to pictures shared over social media. Continue reading for a discussion of social media platforms’ rights to the images posted by their users and for an explanation of Canadian copyright in images.
Social Media Platforms’ Rights to Images
In agreeing to the Terms and Conditions of use before posting to a social media platform, a user is most likely granting the platform a non-exclusive license to their images. In granting someone a license to use their image, the owner of the copyright retains ownership of and the “moral rights” to the work, but is providing the licensee with the “economic right” to use the material according to the terms set out in the licensing agreement. A licensing agreement can be made in exchange for money, publicity, or another form of compensation. The significance of this is that in granting a social media platform a non-exclusive license in exchange for the use of the platform, the social media platform is not given any ownership rights to a user’s posted images, but it does give them a right to use the images according to the language of the licensing agreement set out in the Terms and Conditions.
A non-exclusive license means that an individual who posts an image to a social media platform is able to grant licenses to their image to others as they see fit, but it also means that they would be unable to sell the same work under an exclusive license to someone else, unless they ended the non-exclusive license that they have with the platform. Depending on the specifics of the platform’s Terms and Conditions, it is possible that an individual can end their non-exclusive license by deleting their image from the social media platform or deleting their account.
Generally, a limitation on most social media platforms’ abilities to use an individual’s images in the above-mentioned ways, is that their use will most likely have to be consistent with an individual’s privacy and application settings. This means that the more private the settings are on an individual’s account, the less a platform is able to do with said individual’s images.
Finally, it is likely that the social media platform retains all rights to their own intellectual property in the original images, designs, videos, or sounds that they provide for users to add to their own content. This means that if an individual uses a design such as a geotag or a filter created by the platform in their image, the platform has the copyright over the portion of the image that is their original design. The rest of the image would still belong to the individual who created it. The significance of this is that the individual who created the image would not be able to use any part of the image that includes the platform’s original design in any way that could possibly affect the platform’s rights as the owner of the design’s copyright.
Why does the Creator Own the Copyright to their Visual Artistic Work and not the Social Media Company?
Ever since the 2012 Copyright Modernization Act came into effect, the copyright in a photograph is held by the individual who took the picture, unless that individual took the photograph in the process of their employment. Should that be the case, the photographer remains the author of the photograph, but the ownership of the copyright belongs to their employer, provided that certain conditions are met. The same guidelines apply to any other artistic work, including any original visual artistic work created by an artist.
A creator of a copyrighted work has both “economic rights” (the right to control the reproduction of a work and communication of a work to the public by telecommunication) and “moral rights” (which include the right to be associated with the work and for it not to be changed in any way without their permission). The photographer or creator of an image will always have the “moral rights” to their work and these cannot be assigned, even to an employer or license holder. If an individual takes a photograph or creates a visual in the course of their employment, they will not control the “economic rights” to their work. The “economic rights” will be held by the employer who is the owner of the copyright, but the creator will retain the “moral rights,” unless they waive said rights.
The significance of these rules is that if a photographer or creator has made an image outside of the course of their employment, they have the exclusive rights to reproduce or authorize the reproduction of their work and the exclusive right to communicate their work to the public by telecommunication for the duration of the term of copyright protection over the work. If a photographer or creator has made an image either inside or outside the course of their employment, they will have the right to the integrity of the work and the right to be associated with it or remain anonymous, unless they have waived this right.
The term of copyright protection in Canada is currently to the end of the calendar year 50 years after the death of the copyright creator. Thus, any image the creator of which died more than 50 years ago is part of the “public domain” and anyone can use it. However, it should be noted that the term of protection in Canada will soon be extended to the life of the author plus 70 years as part of the implementation of the Canada-United-States-Mexico Agreement (CUSMA).
Generally, if an individual creates an image, they own the copyright to it and the right to control its use, unless the individual created the image in the course of their employment or someone uses the image for a purpose that is considered an exception under the Copyright Act.
An individual has the right to enter into licensing agreements for the use of their original images and in posting such an image to a social media platform, an individual can exercise this right by entering into a licensing agreement with the platform, the terms of which will likely depend on the individual’s privacy settings.
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