[美国&加拿大] 肖像权被侵犯怎么办？ [复制链接]

大象老公公
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电梯直达

楼主

发表于 2018-12-7 16:01:15 |只看该作者 |倒序浏览

本人在国内，接触一名外籍摄影师，拍摄了一些照片，其中并没有签署过任何肖像权的转让和任何协议，今日无意发现这个摄影师在去年在多伦多办了展览，其中我有相片，而且也有本地新闻网站的介绍，而且在他的类似于购物网站上也有我相片以量产的形式在出售，请问改怎么办？

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JD@UVA
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沙发

发表于 2018-12-7 23:15:02 |只看该作者

It depends. Google the copyright issues between a photographer and a model. If in doubt, consult an attorney (in your case, maybe a Canadian lawyer).

http://zerodean.photography/advi ... ow-about-copyright/

Unless a contract has been signed stating otherwise, the federal Copyright Act states that the photographer owns the copyrights in the photographs and thus controls how they may be used.

Copyright law is slanted in favor of the creator. The copyrights of photos are given to the photographer, not the model.

The exception is if the model (or client) pays the photographer for his services, and prior to shooting gets a contract signed by the photographer stating that the work will be a “work for hire”.

However, this prior designation of an independent contractor’s work as a “work for hire” can only be done when the work falls into one of the following nine categories: (1) contributions to a collective work; (2) parts of a motion picture or other audio visual work; (3) translations; (4) supplementary works; (5) compilations; (6) instructional texts; (7) tests; (8) answer material for a test; or (9) atlases. If you are paying a photographer for his services and wish to receive the copyright of the photos taken, be sure to get them to sign a copyright transfer release (your responsibility).

The ownership between the photographer and a client should be clearly stated and agreed upon in writing by both parties as the first item in the contract. It may be difficult to find photographers who will do this without significant compensation.

With that said, even when a photographer owns the copyright of a photo they cannot publish or sell a model’s photo without a signed model release. Nor can a model publish photographs without a signed publication release from the photographer (even if the model paid for the images).

Photographs taken at public events are considered newsworthy, and in most instances do not require a release.

Photos taken of public people such as the President or a celebrity do not require a signed model release because they are considered “public people”.

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板凳

发表于 2018-12-7 23:17:41 |只看该作者

Information about Canadian Copyright Act

https://cippic.ca/en/FAQ/Photography_Law

Who owns the copyright in photographs?
The person who is considered the author owns the copyright in photographs. The author becomes the first owner of copyright in the photograph and may assign the copyright to another person. Photograph authorship comes under a special regime in the Copyright Act. Under S. 10(2) of the Act, the owner of the “initial negative or plate” at the time the photograph was “made” is the author. The “making” of the initial negative or plate refers to the exposure of the film by clicking the camera’s shutter. If there is no “initial negative or plate”, then the author is the first owner of the photograph.

For analog photography, the author is the person who owns the film negative at the time of exposure. That means it is not necessarily the photographer, the owner of the film at the time of processing, or the owner of the camera. For example, you took the photograph with your own camera, but with someone else’s film in it. You subsequently gave the film to a friend who processed it for you at a later time. The author and the first owner of the copyright would be the person who owns the film negative, not you as the photographer or owner of the camera, nor your friend who developed the photograph.

For digital photography, the author is the owner of the digital camera with the CCD or CMOS chip built in to it. Since the built-in chip is the equivalent of the “initial plate”, the author here is really the person who owns the digital camera and not the person who owns the digital memory card or flash drive.

Note that as a result of this provision, corporations can be authors and first owners of copyright in photographs. This is a controversial subsection because it departs from the normal standard of copyright ownership for “Artistic Works” under the Act, where the author of a work is the person who created it. Recent attempts at amendment (Bill C-60, 2005; Bill C-61, 2008; Bill C-32, 2010, Bill C-11) tries to grant photographers the same authorship and copyright ownership as other creators. For more on attempts at copyright reform,click here.
For all artistic works, the author of the work is the first owner of its copyright. The author may then assign the copyright to another person. Determining who is the “author” of a photograph will depend on when the photo was taken since the process, as outlined in the Copyright Act, was amended by the passing of the Copyright Modernization Act in 2012.

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