Ritchie v Sawmill Creek Golf & Country Ltd, 35 CPR (4th) 163 (CanLII)

Key Principle:

Oral permission to use photos for a certain purpose provides a defence to an action for infringement. But, oral permission to use them for a certain purpose gives no rights in the photos with respect to suing others for copyright infringement. A grant of permission need not be in writing. A grant of a right in material does need to be in writing.

Summary:

The Situation:

You are the owner of a popular wedding venue, Fertile Beginnings, a rural early 20th century farm that you have restored for the purpose of hosting events. The main draw to your business for wedding planners is the natural beauty of the surrounding area and the relaxed, rustic atmosphere of the old farm buildings. A freelance photographer has approached you with a book of photos she has taken of your business. She leaves the photos with you, hoping you will like them so much that you hire her in a full-time position to shoot all weddings at your venue, update your website, and create advertisements.

You like the photos and put some of them on your website without notifying the photographer. You hire the photographer to shoot one wedding and to upload some photos to your website but, ultimately, you decide hiring the photographer on a full-time basis is too big of an expense. You break off ties with the photographer. There was no written contract of employment.

The photographer brings an action against you claiming your use of her photos, both from the initial book and her subsequent brief period of employment, on your website without consent is an infringement of her copyright.

The Conclusion:

It is likely that you have a valid defence to the photographer’s action. Although the Copyright Act generally requires the granting of an interest in material subject to copyright be in writing, granting permission to use material subject to copyright for a specific purpose does not. In your case, it is likely the judge will find that the initial book of photos given to you were a gift in order to gain your favour and full-time employment. So, you can likely use them without infringing copyright. With respect to the photos uploaded to your website during the brief period of employment, again, although no granting of an interest was expressed in writing, it is fairly clear the photos were taken for the purpose of updating your website. Therefore, you have oral permission to use them for that purpose and a defence to copyright infringement.