Daniel Urbas is a lawyer with Woods & Partners. His practice focuses on media law, intellectual property, e-commerce and litigation. He can be reached at durbas@woods.qc.ca

The contents of Publishing Law should not be construed as legal advice offered by Masthead or Mr. Urbas. Readers should consult their own lawyers before acting.

Column for February 2002

Photo Manipulation

Anne van Loon, business manager for DvL Publishing, Nova Scotia, asked:

"We need some information on how other mags are handling manipulation of photos. We have the ability, and some of us have the interest, in touching up every photo we use. So far I can't find much info on legal and moral implications. One piece found by staff says "everyone's doing it". Another says that every pixel changed should be identified. Is there an industry standard to which we can cling?"

The issue of photo manipulation is common these days. Recent examples in the broadcast media deal with alterations to the images of Michael Jackson and Whitney Houston filmed during a November 2001 Madison Square Garden concert. Using a digital imaging machine called the Quantel Henry, producers darkened Mr. Jackson's skin and fleshed out the skeletal Ms. Houston.

In the print media, software advances allow anyone with a mouse to rework photos to suit their particular needs. While the technology is accessible, editors have to consider the legality of altering photos.

Two separate rights: subject's and author's

It is important to distinguish which rights are affected when a photo is manipulated. Altering a single photo can affect the rights of two different people: the photographer who took the photo and the individual who appears in the photo. A recent magazine cover photo of Nelly Furtado illustrates the issue.

The original photo of Ms. Furtado, produced with her consent in collaboration with an unidentified magazine, pictured her from the waist up. The photo was then licensed or sold to Maxim magazine. Before publishing the photo, Maxim reportedly shortened Ms. Furtado's shirt, exposing more of her belly, and then replaced Ms. Furtado's belly with that of another woman. The new photo ran on Maxim's December 2001 cover with the tag line "Nelly exposes skin". The photo manipulation made news coverage not because the photographer objected but because Ms. Furtado reportedly objected. She said that the photo was not her and she did not dress like the photo suggested.

Anyone altering a photo should pay special attention to how the alteration affects the subject: do the changes recast the subject in a negative light? Many celebrities claim lucrative rights in their abilities to control and market their personality both as endorsements and in performances.

Some changes merely improve a photo's quality or fit the photo into the space available. However, some changes go beyond mere technical requirements and reflect editorial positions. Many will recall one U.S. newsmagazine's ill-considered decision to enhance the 5 o'clock shadow on Mr. O.J. Simpson. Unfortunately for that newsmagazine, unaltered versions of the same original photo were published the same week by other newsmagazines without any enhanced 5 o'clock shadow. The photo manipulation was easy to identify.

Author's or moral rights

Independent of how the subject might react, changes to a photo raise the issue of an author's moral rights. In copyright law, the photographer is known as the "author" and the photo is known as the "work". In the simplest case, a photographer creates a photo and then tries to sell or license it. In this case, the photographer owns two distinct rights: the copyright and the moral rights.

Copyright involves the right to produce or reproduce the work or any substantial part thereof in any material form whatever as well as the right to authorize such production or reproduction.

Moral rights involve: (a) the author's right to integrity of the work; and, (b) in connection with any exercise of the copyright, the right, where reasonable in the circumstances, to be associated with the work as the author by name or under a pseudonym as well as the right to remain anonymous if the author so wishes. In other words, moral rights allow the author to control changes to the photo and the right to be identified as the author.

Copyright allows the owner to make copies of the photo. Moral rights allows the holder to make changes of the photo.

Moral rights can be waived, not assigned

Unlike copyright, moral rights are not assignable. Moral rights, though, can be waived in whole or in part. This means that an assignment of copyright in a work does not mean that the author is waiving any moral rights. A waiver made in favour of the new owner or licensee of the copyright may be invoked by any person authorized by the new owner or the licensee to use the work, unless there is an indication to the contrary in the waiver.

Moral rights exist for the same term as the copyright in the work and can be acquired by will or, in the absence of a specific provision in a will, to the author's heirs.

Moral rights have important limitations. First, the right to be identified as the author is limited to when it is reasonable in the circumstances. Therefore, not every omission of the photographer's name is a breach of the moral rights. Second, the right to control changes to the photo is limited to preventing changes which will prejudice the honour or reputation of the author.

Integrity of the work and association as author

Manipulating a photo may affect an author's right to the integrity of the work. The Copyright Act provides specific rules regarding the integrity of a work. The Copyright Act deems that the author's right to the integrity of a work is infringed only if the work is, to the prejudice of the honour or reputation of the author: (a) distorted, mutilated or otherwise modified; or (b) used in association with a product, service, cause or institution.

Not all changes to a photo are bad. The change must prejudice the honour or the reputation of the author. Any step taken in good faith to restore a photo by filling in scratches or to compensate for fading would likely not attract any liability. Cropping a photo should not necessarily prejudice the author's honour or reputation. In practice, manipulating photos for layout or quality of reproduction should not give magazines too much of a problem.

It is easy to identify changes which would distort or mutilate a photo. However, the Copyright Act also mentions "or otherwise modified" as qualifying as a potential breach of the moral rights. Check any modern dictionary to see how little effort it takes to "modify" something. For example, the Shorter Oxford English Dictionary defines "modify" as, among other things, "to make partial changes in; to alter without radical transformation." The use of the term "modified" appears to lower the bar, allowing many changes to a photo to trigger the clause. However, the addition of the words "or otherwise" might suggest that the modification should be of the same intensity as the preceding "distorted" or "mutilated". Don't count on it, though.

What constitutes distortion, mutilation or modification is a question of degree and quality. A good way to avoid misunderstandings is to check with the author before incurring any significant expense or print run.

Using the photo in association with the product, service, cause or institution is a breach of an author's rights. An 'association' might occur when the photo is used in such a way as to suggest an endorsement or a promotion of the product, service, cause or institution. For example, a photographer as the author of a photo could prevent the use of the photo for a political campaign. Photos used in advertising, however, are typically the object of a prior agreement between the photographer and end user.

Special rules for ownership and authorship of photos

If you have "bought the rights to a photo", don't assume your payment includes the right to manipulate the photo. Remember, copyright and moral rights are separate rights. Some simple rules apply to judge whether your seller controls the copyright and the moral rights.

Generally speaking, the author of a photo is the first owner. This rule has three key exceptions.

First, if the work was created in the course of employment, the employer is automatically the owner. A magazine owns the copyright in a photo created by one of its staff photographers when on assignment.

Second, where the plate or other original of a photo was ordered by some person other than the photographer and was made for valuable consideration, and the consideration was paid, in pursuance of the order, the person who made the order is the first owner of the copyright.

Third, where the person who was the owner of the initial negative or plate at the time when that negative or plate was made, or was the owner of the initial photo at the time when the photo was made, where there was no negative or plate, the law deems that person to be the author of the photo. The author can also be a corporation.

These three rules, when read together, will sometimes mean that a company will control both the copyright and the moral rights. Consider three examples. (1) the photographer is an employee of magazine A and creates the photo during the course of her employment; (2) the photographer is a freelancer who creates a photo at the request of magazine B; (3) the photographer is a freelancer and magazine C buys a pre-existing photo from the freelancer, negotiating to obtain all the copyright in and to the photo allowing it to produce or reproduce the photo in any material form whatever.

Under Canadian copyright law, magazine A and B own the copyrights and are also deemed to be the authors of the respective photos and the owners of the moral rights. Magazine C owns the copyright but is not the author of the photo. With magazine C, the author remains the photographer and she retains all the moral rights. The result is that magazines A and B can manipulate the photos at will while magazine C has to negotiate substantial changes with the photographer.

When acquiring the rights to use a photo, check with the seller to see whether the seller owns the moral rights as well as the copyright. If the seller does not own the moral rights, ask if there was a waiver in favour of the seller and what are the limits of that waiver, if any. Don't be surprised if the seller has not thought of the moral rights before you asked. If the photo was not generated by the seller's employee or at the seller's request, then you might have to track down the original photographer if you want to make substantial changes to the photo or use it in association with a product, service, cause or institution.

Digital photos

A final note of caution about new digital photo systems. The definition of "photograph" in the Copyright Act includes "photo-lithograph and any work expressed by any process analogous to photography". Processes "analogous" to photography do not necessarily include digital photography as we now know it. It remains to be seen whether digital photography imaging will be treated generally by the Courts as to qualify as photography. Rather, it may be considered to be a non-photographic work which is not subject to all the deemed ownership rules mentioned above.

The definition in the Copyright Act does not expressly include all processes which produce a final result similar to or analogous to a photo, with or without the use of a negative. Some argue that the Copyright Act does not expressly exclude them either and the definition should be read to include new inventions and techniques which correspond to the intent, if any, to broadly cast the definition for photo to include existing and subsequent technologies. As of today, there is no clear line of authority either including or excluding digital images, created without a negative, as photos for the purpose of the Canadian Copyright Act.