Technically, that photo you just Instagrammed of your delicious cocktail at that swank hipster bar opens you up to legal action. And that “lazy Sunday with Starbucks mug” pose. And that sweet mid-jump photo your friend got of you in front of the alleyway full of graffiti.
As it turns out social media is making us a bunch of criminals. Well, kind of.
It all depends on what you do with the photos after you’ve snapped them says Kevin Sartorio, an intellectual property litigator and partner at Gowling Lafleur Henderson law firm.
“There are two categories of to keep in mind an exploitation for commercial purposes versus a purely private purpose,” Sartorio told Yahoo Canada.
You’re protected under Canadian copyright law if you want to shoot photos of buildings in a public setting. Unless, of course, those buildings have independent artistic work on them, like Toronto’s oft-photographed Flatiron-esque Gooderham building which is adorned with artwork on one side or in a situation where a building is tatted with street art.
“I’ve done several cases with graffiti artists where there work has appeared incidentally in relation to large company’s promotional efforts, just something in the background,” says Sartorio. “In the world of graffiti art, any use of their image in a work of a commercial context is ruinous for their reputation.”
Snapping a photo of your Starbucks cup, which has artistic elements in it, and posting it to your social media can be seen as infringing on copyright law.
“There’s a broad defense which says generally if you deal fairly with somebody’s work for the purpose of criticism or review or news reporting or parody or satire then it may be protected,” he adds. “I think the main thing is there’s a legal risk and then the practical risk of complaint.”
He points out that, although copyright law is a case-by-case basis, tourists snapping photos on private property are not likely to get a complaint and if they do, blurring out images of strangers and recognizable logos should be enough to satisfy complaints.
“But as soon as you start taking pictures of others people’s intellectual property and deriving profit from it there starts to be a motivation to complain or even pursue legal action,” he says adding that legal action ranges from fines to paying thousands of dollars in damages.
While the law has yet to really catch up to the proliferation of social media feeds, the fact that 68 per cent of Canadians are walking around with smartphones and their in-built gazillion-megapixel cameras tunnelling holes through their pant pockets means there’s plenty of legal gray area to be trampled on.
“Everybody has a camera, everyone is snapping everything all the time – individuals are increasingly figuring out ways to monetize their social media presence,” he says. “Those of us who have social media accounts that are purely private we don’t have the same concern as somebody using their social media presence, those people need to pay particular attention to what seems like a minor detail but can escalate into something quite significant.”
While there’s no law against snapping photos in public, spaces like parks or malls are private property and therefore it’s up to the landowners whether or not photography is permitted.
Case in point, on the City of Toronto’s 311 page it says: “Patrons wishing to use cameras, video cameras or other photographic devices, including camera phones and PDA’s (Personal Digital Assistants), in any program or facility must receive permission from staff before filming. When possible staff should make a verbal request for permission to photograph other patrons who may be in the area where pictures are being taken.”
But when pressed about the policy, Toronto’s director of parks Richard Ubbens told the Star it has more to do with snapping photos of people you don’t know.
“I think that the language you’re referring to (in the 311 post) could be clearer,” he said. “The intent of it is to respect people’s privacy so that they’re not caught up in the photos of other people.”
William Kowalski, chair of free speech non-profit PEN Canada’s National Affairs Committee, told Yahoo Canada, the pace of technology is creating murky waters for where you can and can’t snap photos.
“Copyright law is something that most people don’t know anything about because they don’t have to, it’s not a normal thing for people to know about yet but I think more and more it’s going to have to be,” says Kowalski. “What we’re seeing more than ever is a convergence of social guidelines on the one hand and legal rights and restrictions on the other – and things are going to be messy for awhile until we get it sorted out.”