Under the Canadian Copyright Act, the artist or photographer automatically owns the copyright to a commissioned portrait or artwork, even if you paid them to create it. To own the intellectual property yourself, or to use the image for commercial purposes, you must have the creator sign a written copyright assignment agreement.
Understanding Portrait Copyright Rules
Hiring a photographer for your wedding in Halifax, or commissioning a local artist to paint a family portrait in Calgary, is a common occurrence. Most Canadians reasonably assume that because they paid for the service, and because they are the subject of the art, they automatically own all the rights to the image. Historically, this was true in Canada. However, a major amendment to the Copyright Act in 2012 completely flipped the default legal rules regarding commissioned works.
Today, the default rule in Canada is that the creator (the photographer, painter, or illustrator) is the first owner of the copyright. 📍 This means they have the exclusive right to reproduce, publish, and exhibit the work. The person who paid for the portrait merely owns the physical painting or the digital files, along with an implied license to use them for private purposes. If you plan to use a commissioned portrait for business marketing, or if you simply want complete control over your family’s images, you must proactively manage the legal paperwork with the help of a law firm or a clear contract.
Step-by-Step Process for Securing Copyright on Commissions
If you want to ensure you have full ownership and control over a commissioned portrait, you must take specific legal steps before the artist picks up a brush or a camera. Here is the standard process across Canada.
Step 1: Understand Your Intended Use
Before negotiating, determine exactly how you plan to use the portrait. If you commissioned a photograph purely for personal use (like hanging it in your living room or sharing it on your personal social media), the Copyright Act already includes an exception that allows you to do so without infringing on the creator’s copyright. However, if you are a real estate agent wanting to put your commissioned headshot on a billboard or website, you need commercial rights.
Step 2: Negotiate Ownership Upfront
Do not wait until the portrait is finished to discuss intellectual property. Have an honest conversation with the creator. You can either negotiate a Commercial License (where they retain copyright but give you permission to use it for your business) or a full Copyright Assignment (where they completely transfer ownership of the IP to you).
Step 3: Draft and Sign a Written Contract
In Canada, a transfer of copyright ownership is legally invalid unless it is in writing and signed by the original copyright owner. 🗂 A verbal promise means nothing. Your law firm can draft a short “Copyright Assignment Agreement” that explicitly states the creator assigns all rights, titles, and interests in the work to you. While this contract can legally be signed at any time (either before, during, or after the portrait’s creation and payment), it is highly recommended to finalize the written agreement prior to or alongside your final payment to prevent any future disputes.
Step 4: Include a Moral Rights Waiver
Even if an artist transfers the copyright to you, they still retain Moral Rights under Canadian law. This means they can object if you modify the portrait in a way that harms their reputation (e.g., adding an offensive slogan to their painting). To have total freedom to edit, crop, or modify the portrait, your written contract must include a specific clause where the artist explicitly waives their moral rights in your favour.
How Much Does it Cost in Canada?
Securing the intellectual property for a commissioned portrait involves the cost of the art itself, plus the legal mechanisms to secure the rights. 💵
- Commercial License / Buyout Fee: Artists and photographers often charge a premium to give up their copyright. Expect to pay anywhere from 50% to 300% more than the standard sitting fee to acquire full ownership.
- Legal Drafting Fees: Having a Canadian lawyer draft a standard, reusable Copyright Assignment and Moral Rights Waiver typically costs between $300 and $800 CAD.
- CIPO Registration: If you want to officially register your newly acquired copyright with the Canadian Intellectual Property Office, the government fee is $63 CAD for online applications (or $81 CAD for paper submissions), while registering a copyright assignment costs a flat fee of $81 CAD regardless of the filing method.
How Long Does the Process Take?
The creation of the copyright is instantaneous; the moment the painting is fixed on canvas or the photo is saved to a memory card, the copyright exists. Negotiating and signing the contract should only take a few days before the project begins. Once secured, the copyright generally lasts for the life of the creator plus 70 years. If you choose to register the transfer with CIPO, processing the certificate generally takes about 2 to 4 weeks.
Frequently Asked Questions (FAQ)
Can a photographer post my family portrait on their website?
Because the photographer owns the copyright, they generally have the right to display their work in their portfolio. However, provincial privacy laws (especially in British Columbia and Quebec) may restrict them from publishing images of you without your explicit consent.
I bought the physical painting, doesn’t that mean I own it?
No. Owning the physical object (the canvas) is legally separate from owning the intellectual property. Without a written agreement, you cannot legally make prints of the painting or sell merchandise featuring the image.
Can I post my commissioned portrait on Instagram?
Yes. The Canadian Copyright Act has a specific exception for photographs and portraits commissioned for personal purposes. You are legally allowed to share it with family and friends or post it on personal social media accounts without permission.
What if the portrait was created before 2012?
The rules were different before the 2012 amendments. Generally, for photographs or portraits commissioned and paid for prior to November 7, 2012, the person who commissioned the work is considered the first owner of the copyright, not the creator.
Does a verbal agreement hold up in court for copyright?
No. Under the Canadian Copyright Act, any assignment or transfer of copyright must be in writing and signed by the owner to be legally valid. Verbal agreements can grant a non-exclusive license, but never full ownership.
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