Part II: Sectoral Issues

Photography

There are approximately 14,000 photographers working in Canada today, many of them earning all or substantial portions of their income in this medium. Two organizations – the Canadian Association of Photographers and Illustrators in Communications, and the more recently founded Canadian Photographers Coalition – represent the interests of the profession. Membership in these industry organizations is not mandatory, and, apart from photographers employed by unionized newspapers, there is no collective representation. Rather, Canadian photographers tend to be freelancers, and function as small businesses, contracting with individual or corporate clients.

Photographers function in a range of commercial and artistic environments, and, like many creative people, earn their incomes by keeping a foot in several worlds. It’s not unusual for a photographer to have purely commercial clients (e.g. advertising agencies, consumer product manufacturers, private portrait commissions, etc.), as well as relationships with media organizations (magazines, wire services) and stock agencies, all of which may provide income to subsidize creative projects. These images may end up in galleries, monographs or private collections, or they may not find “a market” at all.

There are fine art photographers who derive a portion of their income from teaching, as well as those who are dedicated amateurs, in the sense that they regard their photographic pursuits primarily as a hobby which, on occasion, produces a sale.

CAPIC also represents professional illustrators. Besides working for book publishers, they are often commissioned by media organizations and advertisers to create images to be reproduced in some kind of published commercial medium. Images or characters they may create for a children’s picture book, to take another example, can become highly valuable consumer commodities that turn into widely distributed brands, marketed as television shows, plush toys, electronic games, trademarks, etc. Such uses – e.g. Franklin the Turtle, etc. – are capable of generating revenues that the vast majority of visual artists rarely achieve. This kind of exploitation traces back to a highly-structured contractual relationship between an author/illustrator and a book publisher.

More typical is the case of the illustrator who works for magazines, newspapers or other corporate clients as a way of generating income to subsidize their non-commercial art. There is no “standard” contract between the illustrator and the client. Some commissioning clients will buy the illustration outright, while others may only purchase first print right or one-time reproduction rights. Whatever relationship exists is negotiated between the parties.

In some cases, the sale of an image can wind up depriving the creator of substantial earnings. A designer with a solid working relationship with an ad agency sold an image outright, but later discovered that the client had made extensive use of this work on billboards and other media, including an animated film. “She was horrified because she felt she’d sold something that was very lucrative for a pittance.”

Improvident? In such cases, yes. But on the other hand, some illustrators recognize the opportunity to negotiate trade-offs that work to their own benefit. A Toronto painter tells of working with a major magazine that insists on buying all rights on a permanent basis, and refuses to negotiate. But the illustrator enjoys working with this publication because they provide her with a high degree of artistic independence. Another example she cites: websites will seek to purchase her work, offering, typically, a small fee. She, in turn, grants digital rights provided that there’s a link to her own self-promotional website – a trade-off that has proven to generate new business.

A painter and illustrator who also works as a cartoonist tells of an arrangement with a U.S. syndicate that places his work in U.S. publications. The relationship is entirely verbal: the cartoonist regularly sends electronic images of his drawings to the syndicate, and they are sold to news organizations. The good news is that once a year, a cheque for a few thousand dollars arrives in the mail. The downside is that unauthorized copies of his images now routinely show up on websites. The exact form of the contract is secondary to the more fundamental question of whether there’s an ongoing flow of royalties for repeat uses. That’s the measure of whether copyright is being respected.

Like illustrators, many professional photographers deal with the media industry, and thus are affected by structural changes, such as consolidation and concentration. For example, some acquisition-oriented media companies, such as Transcontinental, now publish magazines in both the English and French markets. That means some magazines now buy both English and French rights as a package, whereas previously the photographer would have made separate sales. As with magazine writers, media organizations want digital rights, but still pay little more than a token amount to publish an image on a website. What’s more, there is also a downward pressure on photographers’ fees.

Technology, in recent years, has had a dramatic impact on many photographers, especially those working with or for media organizations. Rapid advances in digital photography have provided both benefits and added costs. Conventional film, for example, has always been a major expense, and the advent of digital imaging reduces those costs. At the same time, many photographers are facing growing pressure from their clients to invest in professional quality digital cameras and studio equipment – a substantial capital expenditure that can run as high as $60,000 to $70,000.

Increasingly, there’s a growing supply of stock photographs available on the Internet and on CDs, and some professionals believe this development in their profession has turned images into commodities, with diminishing economic value. As one photographer puts it, digital film “democratizes creativity, but destroys specialization.”

For photographers who subsidize their art by teaching, the advent of digital scanning technology raises another set of complexities – essentially, putting the copyright shoe on the other foot. Fine art teachers have long relied on the pedagogical technique of showing their students slides created by photographing works from art books. This practice is now authorized by exemptions. The making of photocopies of artistic works is covered by blanket licenses between such institutions and copyright collectives.

As one fine art photographer explains, he now scans images into a computer linked to a digital overhead projector, rather than going through the more cumbersome process of taking photographs. This approach to teaching the visual arts to future artists significantly reduces the instructor’s budget – the cost of producing dozens of slides per lecture is typically an out-of-pocket expenses – and makes it possible to expose students to a wider range of images. But in so doing, as this artist explains, he has effectively created an electronic database of digital images, for which no permission has been obtained. The process of clearing the electronic rights for hundreds of photographs per lecture is beyond the ability of the individual instructor. In effect, artists who wish to control their own work have found themselves exploiting the works of others without permission.

Similarly, the Internet provides both opportunities and risks for photographers. Almost all professional photographers now have their own websites, which represent a highly efficient marketing tool for disseminating samples of their photography.

On the other hand, some photographers are growing increasingly anxious about the problem of having their images “swiped digitally,” as one photographer puts it. Typically, photographers may send a computer file containing an image to a gallery or a commercial client. But these are often not returned to the photographer, raising questions about what happens to the image subsequently. Increasingly, photographers will find their images published without authorization on third party websites or without their name. Software, moreover, can be used to alter photographs without the permission of the photographer – a classic example of how technology can undermine moral rights.

One photographer relates the following conundrum: he will sell an image to a commercial client, such as an ad agency, and the agency, in turn, will allow the image to be used by another party on its website for one client, or in a brochure. There are legal difficulties arising from such transactions – for example, model waivers, which may apply to the first use of the photograph, but not necessarily a subsequent use. The photographer’s dilemma is that if he or she questions this practice with his client, he may jeopardize an otherwise fruitful relationship upon which he depends. “You weigh the options: how much is this costing me, and is it worth the consequences?”

Such anecdotes underscore a lingering weakness in Canada’s Copyright Act, which does not recognize photographers as “authors” of their own work when someone else owns the negative – a situation that confuses ownership and authorship. Also, photographs belong to the party – either an individual or a corporation -- that commissioned them, unless there is an agreement otherwise. Once an image has been acquired in this way, the photographer no longer has control over its use, nor the opportunity to derive royalties from the work.

Day-to-day relationships negotiated between photographers and their clients vary considerably. Some magazines, for instance, only buy first-publication rights, meaning that the photographer does, in fact, retain ownership. But they may also impose a moratorium on re-selling an image for a specified period of time. In other cases, the quid pro quo is that the client will offer to provide a lot of work in exchange for the right to use the images extensively. “There are ambiguously worded contracts,” says one magazine photographer. “Publishers retain some rights, and may keep an electronic copy of the image and re-sell it, so everyone becomes a stock agency.”

According to CAPIC and the Canadian Photographers Coalition, the state of Canada’s treatment of photography puts it at odds with major industrialized countries, including the United Kingdom, the United States, France and Australia. Moreover, Canada can not ratify the WIPO Copyright Treaty unless it updates the provisions in the Act relating to the term of copyright in photographs. As the CAPIC brief puts it, “It is time to recognize that photography is a creative art form and that photographers are worthy of first copyright ownership.”

Last year, a private member’s bill proposing amendments to the Act was introduced in the Senate. And in its interim report on copyright reform, released in May, 2004, the Standing Committee on Canadian Heritage urged that the Act “be amended to grant photographers the same authorship right as other creators.”

Explaining the rationale behind this recommendation, the report noted: “The Committee feels that photographers should be given copyright protection in their works equal to that enjoyed by other artists. Historically, photographs have been treated differently from other categories of works because they were perceived to be more mechanical and less creative than other forms. This idea is outmoded and inappropriately treats photographers differently from other artists.”

Ratification by Parliament of the WIPO copyright treaty should also provide a boost for photographers, because it means an extension of the term of protection of all photographs from 50 years to “the life of the author plus fifty years.” As Marcel Boyer, Ph.D. (CIRANO and Universite de Montreal) concluded in a 2003 report to Industry Canada on the economic impact of the WIPO treaties on creators, the extended term of protection (as well as other WIPO provisions) “can only benefit the publishers in Canada [and] it will increase the availability of the works of creators because they will be better protected against unreasonable exploitation.”

Visual Arts

The Canada Council estimates that there are approximately 15,000 visual artists across the country. The organization that speaks for many Canadian visual artists – painters, sculptors, print makers, media artists, fine-art videographers, etc. – is known as Canadian Artists’ Representation/Front des artistes canadiens (CAR/FAC). Founded in the 1960s, it has about 2,000 members nationally, and concerns itself with the issue of fees and payments paid to artists exhibiting their works in museums and galleries. A handful of other collective societies, mainly based in Quebec, also represent visual artists and crafts people, including SODRAC.

As with many creators, many visual artists supplement their incomes with more commercially-oriented contracts in order to subsidize their purely artistic work – projects that can raise tough personal questions about the balance between a creator’s control over his or her work, bargaining power and financial remuneration.

In a practical sense, copyright law doesn’t directly affect the work of certain categories of visual artists because they are, by definition, in the business of producing unique creations (installations, sculpture, etc.) that can not be reproduced in any meaningful way (except for being photographed or filmed).

Visual artists have some access to reprography royalties collected by Access Copyright, as well as royalties from the Public Lending Right, if they have illustrated books. Access Copyright has an arrangement with the CAR/FAC Collective to administer the reprography payments to visual artists. Such royalties derive from the copying of published fine art images by educational institutions, libraries, etc. According to CAR/FAC, about 25% of its members belong to this collective, earning an average of about $500 annually. CAR/FAC believes Access Copyright has tended to underestimate the share of licensing revenues owed to visual artists.

The greater concern, at present, has to do with the relationship between visual artists and museums or art galleries. More established or successful artists may gain exposure to broader audiences by showing their work in such institutions. Unlike commercial art dealers, most of these venues receive public funding from the various levels of government. A 1988 amendment to the Copyright Act established an “exhibition right” for visual artists whose work is displayed in museums and galleries that are not selling art. The existence of this provision for visual artists is unique to Canada, although galleries and museums in other countries do pay fees. Canadian museums, through their association, were vehemently opposed to the 1988 measure in principle; during a Parliamentary review of the bill, some curators stated publicly that a work of art is not complete until it is curated, and therefore artists should share their copyright with curators. The museum sector has continued lobbying to have the exhibition right replaced or eliminated, citing budgetary pressures.

Visual artists enjoy the same rights of authorship as any other creator recognized under the Act. But the exhibition right requires museums and galleries to pay artists a minimum fee for displaying their works to the public. Prior to the introduction of the exhibition right, most museums and art galleries did provide a CAR/FAC fee to artists whose work was displayed on a voluntary basis, thanks to pressure from CAR/FAC. The introduction of the right, in 1988, did not result in a significant increase in those fees; it primarily codified existing practice. Indeed, the fee for a major museum exhibition is approximately $1,200 – an amount that barely covers framing expenses.

Where the issue of the exhibition right fees become contentious has to do with art acquired by museums or galleries for their permanent collections. Typically, galleries and museums have asked artists to waive their exhibition right, as well as their moral rights in some cases, when they purchase a work. And, citing budget constraints, they tend to ask the artist to waive exhibition fees for these works. It’s not unusual for artists to be told that public exposure – and, implicitly, the prospect of future sales to individual collectors -- will compensate them for whatever income they lose in the form of upfront fees, in effect, all but forcing artists to participate in the undermining of their own rights. As artist John B. Boyle has remarked, “This is Canada. People die of exposure.”

According to CAR/FAC, there’s a generational divide in artists’ attitudes towards such arrangements. Young artists are more willing to waive their reproduction rights in order to gain exposure and establish their reputations. Yet such a shift in thinking illustrates the gradual erosion of these principles over the long term, and indicates how the next generation has internalized assumptions about their rights, or lack thereof.

In terms of digital issues, many museums and galleries are moving to expand their websites to include images of all the works in their collections, which are typically far larger than their available display space. Such projects are undertaken both for marketing purposes, but also to make publicly-funded art collections more accessible to a broader audience. Yet visual artists whose work is thus displayed tend not to be paid for this use. In one infamous example, artists whose work was in the National Gallery collection were ordered to waive fees for the use of photographs of those works in a CD-ROM. Some artists were even told that they could receive a copy of the CD-ROM in lieu of a fee. “You can’t pay the rent with a CD-ROM,” countered one well-known visual artist, when presented with this `offer.’

There is one other substantial copyright issue confronting visual artists, which has to do with so-called “remix culture,” or the use of copyright material in new works. It is well beyond the scope of this report to examine the techniques of the artistic process and the evolution of new forms. But suffice it to say that pop culture, consumerism and the mass media are an integral part of our intellectual environment, and thus represent the raw material of the artistic process. Collages, video art, multi-media installations – all these approaches may involve, either deliberately or inadvertently, the unauthorized use of copyright works or trademarks.

A fine art photographer tells of coming across a poster montage, produced by another illustrator, which included a large reproduction of one of his own images, obtained, presumably, with the use of a scanner. There was no credit. He had never been approached for permission to use the picture in this context. This situation reveals how an author’s economic rights are undermined by unauthorized copying, and illustrates how artists manipulate images from the ambient media environment to create a new works without giving the original creator appropriate attribution.

But there are many instances when the shoe is on the other foot, and artists face the erosion of their moral rights by virtue of emerging technologies, digital and otherwise, that can be used to alter works once they pass out of the control of the author. This was the issue at the heart of the Théberge case (see above). Critics of the Supreme Court ruling point out that the diminution of an artist’s moral rights in the name of balance is tantamount to the loss of economic rights. In that case, the galleries had created a kind of fake version of his paintings by transferring the poster reproduction onto a canvas, and had done so without any approval from Théberge.

Because it deals with the question of the extent of an artist’s control over his or her work, the Théberge case draws attention to the issue of whether copyright law should be amended to provide visual artists with a “droit de suite,” or a right to receive a portion of the price paid upon subsequent re-sale of their work. The federal government’s Section 92 report noted that a “droit de suite” may “discourage” the re-sale of artistic works, but pointed to two examples of other jurisdictions – California and the European Union -- that have recently implemented such measures. The reason is made explicit in the EU’s directive setting out the justification for a resale right: “It helps to redress the balance between the economic situation of authors of graphic and plastic works of art and that of other creators who benefit from successive exploitations of their works.”