Permissions

Privacy Act of Canada

The Privacy Act of Canada protects the privacy of individual Canadian citizens. The Act under Personal Information Protection and Electronic Documents Act allows individuals to access and correct any personal information that is collected about them. The Act dictates that a person has the right to protect their name, likeness, voice, and personal documents.

What is a violation of the Privacy Act?

• When the name, likeness, or voice of a person is used without permission for the purposes of advertising, sale, or any other uses of gain. If the person is identified or identifiable and the user intended to exploit said person’s personal information.
• When there is the use of personal letters, or other personal documents without stated permission.

What is not in violation of the Privacy Act?

• When the use of personal information is consented to.
• When the information/images were taken by a media representative gathering information for a newspaper or a licensed broadcaster and that the publication was reasonable in the circumstances and necessary for ordinary news gathering.
• When the manner in which the information is obtained is not a violation of privacy.
• When the matter published was reasonably believed to be of public interest or a fair comment on a matter of public interest.

When is permission required?

• Using another person’s work for commercial uses. Any creative work, including video, music, text, painting, drawing, screenplay or performance requires a copyright permission.
• Using an individual’s image or personal information including, name, likeness, voice, or personal documents. Using these without permission is a violation of the Privacy Act and requires a media/photograph/video release.
• When using a registered trademark. Trademarks are legally registered and protected as intellectual property and require the permission of the owner for use through a trademark permission form.
• Giving credit is not the same as asking permission. Even when you give credit to the author, using other people’s work requires expressed permission prior to use.
• When conducting interviews or surveys. Be clear on how you plan on using the information you are collecting. Most often in these cases expressed vocal consent is appropriate; however, if you are concerned about protecting yourself have them sign a general media release form.

Plagiarism and copyright infringement

Plagiarism and copyright infringement are different from one another. Plagiarism occurs when someone claims another person’s work as their own. Copyright refers to the making of copies or derivative works from something you did not create, the creator may be given credit but was not asked permission. Both copyright infringement and plagiarism are serious offenses and can lead to legal action and/or other disciplinary action.

How and when to seek permissions for copyright work

As an artist/writer, it is important to know the personal rights you hold for your own work and to respect those held by others. 

• Always assume that the work you are looking to reproduce is protected by copyright. Just because a work is published online, or the author of the work is deceased does not mean that there are no restrictions on that work. Trademarks and extended copyrights may still be applicable to the work. Always double check.
• Any creative work in a tangible form is protected by copyright, even if the copyright is not registered. Music (with or without lyrics), written documents, paintings, drawings, sculpture, architectural plans, screenplays, and performances are all protected under copyright and will require permission prior to incorporating or reproducing them in your own work.
• Copyright covers all uses of a creative work, this means that even if you plan on using a small quote from a work, or partial image from a painting or drawing you most likely will be required to seek permission from the copyright holder. There are some exceptions where quotation use may be acceptable, this is called “fair use”; however, even then “fair use” may be challenged and disregarded should legal action be taken.
• Locating copyright owners can be difficult, as copyright applies both to registered and unregistered works. To locate copyright holders you may want to try:
• For Canadian works you may want to start your search by visiting the Canadian Copyrights Database which allows you to search all registered Canadian copyrights from 1991 onwards without charge.
• If you are looking for a work that was published outside of Canada, or prior to 1991, contacting the company that produced the work (like a publisher) is a productive way to get in contact with the copyright owner.
• Often times there will be a copyright symbol on a work, check for that symbol which should indicate the copyright holder and the date of the copyright.
• If the work you are looking to reproduce was not produced by a company, such as original photographs, art works or unpublished texts you will need to contact the artist directly.
• After locating the copyright holder you will have to contact them. You should always get permission to use someone else’s work, prior to submitting your work to a publisher. As the writer/creator of the work you will be held responsible for the use of copyrighted material. Contact may be made through phone call, letter or email. When you first contact the copyright owner, identify who you are, explain what your project is, and which parts of their work you are looking to use/reproduce.
• Remember, if you are planning on using someone’s work they have the right to turn you down or dictate how their work will be used. The original author of the work will have the right to edit how you use their work, and in what manner it is represented. So patience will be key when seeking permission.
• Once you have agreed on the terms of use, these terms may include payment to use the copyrighted material, as well as limitations on usage, establish a basic contract that both you and the copyright holder will sign. The contract should include:
  • The date of the transaction
  • The names of both parties
  • Outline how much and which parts of the work will be used
  • Any payment that will be made to the copyright holder
  • Outline any specific terms of use (will your work be published online, in print, etc…)
  • Indicate how you were planning reproduce the work

Contracts will protect you from charges of copyright infringement.

• If you are unsure whether you will require permission to reproduce a work contact a legal professional that specializes in copyright law and artist rights, they will be able to answer any questions you may have.
• Remember that using copyrighted material may mean that you will have to pay a fee in order to reproduce the artistic work. Fees range from twenty-five dollars through to thousands, depending on the type of work and the rights holder.

Publishing photographs/video

As a writer you may want to include your own photographs in your publication (this includes posting photos on a personal web page, in a book, pamphlet or other work), although you are the copyright owner of the work you may still require permission prior to publishing the photograph. When publishing any image whether photographic or captured on video and the subject can be clearly identified or private information is being disclosed, seek permission prior to publishing. Permission forms will protect both you and the subject.

When to seek permission prior to publishing a photograph/video:

• When publishing a photograph/video of a group or person where the subject(s) are clearly visible and may be identified it is advised to have the central figures sign a model release form.
• When taking photographs/video of privately owned buildings, where the building may be identified. There may be some grey area as to when a building is termed “public” versus “private”, it is often in your best interest to seek the permission of the property owner or building representative, and have them sign a release form.
• When taking photographs of any military, or government function or workers. You may not be permitted to print photographs of service men or women, or related ceremonies.
• Publishing a photograph of a minor or school event. Generally, schools will have media release forms available for use or on file. However, if you photographing a school or school related event talk to the principal, or contact the local school board prior to publishing your photos. Should the photographs be outside the jurisdiction of the school board, but still feature minors seek parental consent and have them sign a model release form.
• You generally do not need a model/media release form prior to publishing a photograph/video of a crowd taken at a public event/festival/concert. The “reasonable expectation of privacy” generally does not apply to people attending a public event/festival/concert.

What is a trademark?

A trademark is a word(s), a design, or a combination of the two that is used to identify the goods and/or services of an individual or company. In Canada trademarks are registered for a fifteen-year duration that can be renewed over again for a fee. Trademarks like copyrights are a form of intellectual property and require permission prior to use.

It is important to note that it is not only companies that have registered trademarks. Individuals may also own a trademark. For instance, Mark Twain is a good example of an individual who trademarked their image and name. During his career Mark Twain would be the first writer to trademark their name and image. Today, that trademark still exists and is held by his personal estate.

General tips on seeking permission for trademark use

• Trademarks, like copyright will require permission prior to use. If you wish to use a trademark in your work, begin the permission process prior to sending your work to a publisher. Gaining permission to trademarks may take a long time, and may be denied.
• Do some research. If you are unsure whether you are infringing on a trademark some basic research may clarify any concerns you have.
• Trademarks can be found through:
  • The Canadian Trademark Database
  • By calling the company that is most often associated with the image/phrase
  • Check company websites, these will most often indicate whether a trademark exists or not. Most often a trademark will be indicated with the trademark symbol.
  • Contact the trademark holder. Some companies have already established application forms available online. If they do not then make first contact over a phone call, letter or email, explaining what your project is and how the trademark will be used.
  • Establish a contract indicating the terms of use, and any fees that may be involved in the usage of the trademark. (If the company already has an online application form for the use of their trademark, then a written and signed letter confirming the usage may be acceptable as legal proof of use.)

Resources:

• Permissions Guidelines for Authors PDF
• Access Copyright (The Canadian Copyright Licensing Agency): Provides information concerning copyright in Canada.
• Department of Justice Canada: The Department of Justice Canada outlines the Copyright Act of Canada.
• Canadian Intellectual Property Office: This site allows artists to register their copyright, and provides detailed information concerning copyright.
• Parliament of Canada: This document outlines Bill C-11, the Copyright Modernization Bill in Canada.
• The Government of Saskatchewan Website: This website provides information concerning the Privacy Act and how it applies in Saskatchewan.
• **Please note that each of these resources provide basic information and should not be taken as legal advice. If you have any concerns over copyright or whether you are infringing on someone else’s rights or privacy contact a lawyer for consultation.

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For more information contact:

PATRICIA J. F. WARSABA, Q.C.
McKercher LLP Regina Office
500-2220 12th Avenue
Regina, SK S4P 0M8
www.mckercher.ca